Lergou v Commonwealth Director of Public Prosecutions

Background facts

1. On 10 October 2014, the appellant was sentenced in the District Court in respect of a number of serious Commonwealth and State drug-related offences.
2. The State offences included supplying 1,405.6 grams of methylamphetamine in the form of pills to a registered source and ongoing supply of 117 grams of cocaine for financial reward, contrary to the Drug Misuse and Trafficking Act 1985 (NSW).
3. The Commonwealth offence was attempting to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code (Cth). The offending, the subject of the charge, took place between 1 April 2011 and 12 December 2011 and involved the appellant dealing with undercover operatives who posed as importers of 25 kilograms of cocaine.
4. In respect of the Commonwealth offence, the appellant was sentenced to a term of 9 years' imprisonment, commencing 10 June 2013 and to expire on 9 June 2022. A non-parole period of 5 years and 3 months was set, commencing 10 June 2013 and expiring 9 September 2018.
5. On 9 September 2018, the appellant was released on parole.
6. On 24 April 2019, the appellant's parole order was revoked, as the appellant had been charged with an offence of possessing a prohibited drug on 24 February 2019. The appellant was sentenced to a Community Correction Order for a period of 2 years in respect of this offence.
7. Then, on 5 June 2019, there was a hearing pursuant to s 19AW of the Crimes Act, consequent upon the offending which took place whilst the appellant was on parole. The Magistrate determined a new non-parole period of 0 days and the appellant was granted parole on that day.
8. Again, the further grant of parole was subject to the condition that the appellant be of good behaviour and not violate any law. There was also a condition that he not use, possess, manufacture or sell any serious drug or precursor.
9. On 22 October 2019, the Commonwealth Parole Officer ("CPO") received a breach report from the appellant's parole officer, the appellant having been arrested and charged with a number of driving offences. The appellant had returned a positive roadside drug test to both methamphetamine and cocaine.
10. On 17 February 2020, the CPO received a further breach report dated 13 February 2020, specifying two further charges relating to the appellant driving a vehicle with an illicit drug present in his blood on 9 October and 30 November 2019.
11. A recommendation was made that the parole be revoked.
12. On 13 March 2020, a delegate of the Attorney-General signed a notice of intention to revoke parole under s 19AU(2) of the Crimes Act on the basis that the appellant had breached the condition of parole that he be of good behaviour and not violate any law and that he had breached the condition which required him not to use, possess, manufacture or sell a serious drug or precursor.
13. The appellant was given notice that his parole would be revoked at the end of 14 days unless reasons were provided and accepted as to why it should not be revoked. An extension of time was granted for the appellant's response.
14. On 2 April 2020, the appellant was sentenced by the Local Court in respect of offences as follows: 1. drive motor vehicle not carry licence - Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A conviction only; 2. exceed speed limit greater than 45km/h - fined $2,484 and disqualified; 3. drive vehicle, illicit drug present in blood - fined $1,000 and disqualified; and 4. resist officer in execution of duty - Community Correction Order for 12 months.
15. On 5 April 2020, NSW Police Force provided the CPO with details of assistance provided by the appellant to the Police.
16. On 10 June 2020, a delegate of the Commonwealth Attorney-General signed the revocation of parole order, revoking parole under s 19AU of the Crimes Act.
17. Then, on 1 July 2020, the appellant was again arrested and charged with one offence of possessing a prohibited drug and four offences of possessing a prescribed restricted substance. These charges were not taken into account in the decision to revoke parole.
18. On 21 August 2020, a s 19AW hearing took place before Magistrate McIntyre for the purposes of the Magistrate issuing a warrant for the fixing of a new non-parole period.
19. Her Honour made an order, further sentencing the appellant to a non-parole period of 92 days to commence on 21 August 2020, making the appellant first eligible for parole on 20 November 2020. The Appellant appeals from that decision.
20. The appellant is currently in custody. He will remain in custody until 20 November 2020 at the earliest.

The appeal

1. The sole ground of appeal relied upon by the appellant is: "The non-parole period fixed pursuant to s 19AY(3) of the Crimes Act 1914 (Cth) was too severe in all the circumstances."
2. The essential proposition advanced by the appellant is that the learned magistrate should not have imposed a further custodial term on the appellant at all and that, in any event, he has served a sufficient period and should be released immediately.
3. When reviewing the new non-parole period of three months on the sole ground that it is too severe, I would apply the principles relevant to manifest excess.
4. The fixing of a non-parole period, even on a hearing of the type conducted by her Honour, is an evaluative exercise in which the sentencing judge exercises a broadly based discretion having regard to the facts and circumstances found.
5. Her Honour considered it particularly significant that this was the second breach of parole. Her Honour considered the purposes of parole and was satisfied that it was appropriate that a further period of non-parole be set. Other than submitting that it was excessive, the appellant did not point to any factors which made it unreasonable or plainly unjust.
6. I do not consider that the period is unreasonable or plainly unjust. [9] Whether I might have imposed a different further non-parole period is irrelevant.
7. Further, there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive. [10]
8. Mr McMahon sought to identify a number of other errors by the learned magistrate as follows: 1. Her Honour erred in mistakenly considering that there was an outstanding period of 626 days remaining on the sentence, when in fact it was 726 days. 2. Her Honour misapprehended the relevance of the period of delay between the Commonwealth becoming aware of the information relevant to any decision about revocation, the revocation order and then the issue of the warrant on 14 August 2020. The appellant submits that her Honour both misapprehended the period of delay and its significance. 3. Her Honour erred in failing to have proper regard to the assistance provided by the appellant to the Police. It is said that her Honour erred in focusing on the motivation for the assistance (which was the benefit that he could obtain) rather than the fact of the assistance.

Error 1

1. I was provided with an audio recording of the hearing. It does appear that her Honour considered the question of whether there should be any additional time spent in custody, having regard to the breach of parole, on the basis that the remaining period of the initial sentence was 626 rather than 726 days.
2. However, it is clear that her Honour became aware of that error prior to the imposition of the orders for the additional non-parole period.
3. Identifying an error that was corrected and could not have adversely affected the appellant does not lead to success on this appeal. That is because, although her Honour was under a mistaken belief at the time of delivering her reasons, she corrected the error prior to making the orders. She was obviously aware of the error and corrected it.
4. It follows that there was no error. Otherwise, an appeal would lie every time a sentencing judge misstated a fact during a sentencing judgment even though it was corrected before the orders were entered. I would infer that her Honour realised her error and still determined the same non-parole period.
5. Indeed, the appellant acknowledges that her Honour realised the error, which may have arisen as a result of information provided to her, prior to the imposition of a further non-parole period on the appellant. Further, the appellant acknowledges that the error might be viewed as in his favour.
6. In my view, having listened to the audio recording of the proceedings, nothing said by her Honour would support any submission that the initial misunderstanding did or could have impacted upon the severity of the sentence.
7. Error 1 is not established.

Error 2

1. The second error identified by the appellant is that her Honour failed to have regard to the delay between the time when the Commonwealth was armed with the necessary information to make a decision about revocation on 6 April 2020 and the execution of a warrant on 14 August 2020.
2. The appellant submits that the delay is unexplained and that it caused detriment to him in that he was left in a state of "uncertain suspense" as to what would happen to him.
3. In R v Todd, [11] Street CJ said: "[W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
4. Further, in Mill v R, [12] the Court said: "The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence."
5. Finally, in Blanco v R, [13] Wood CJ at CL observed: "[16] The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288."
6. Having listened to the audio recording of the reasons for decision of her Honour, it is clear that her Honour had regard to the issue of delay and the submissions made on behalf of the appellant to her. Indeed her Honour specifically refers to having considered cases such as Todd and Mill and the issue relating to the appellant being kept in a state of uncertain suspense due to the delay.
7. However, her Honour considered that delay may be given more weight in circumstances in which, during a period of lengthy delay, the offender was held in custody.
8. Not all of the cases to which I have referred necessarily involve an offender being held in custody during delay but most of the cases do involve a significant period of delay (often of more than a year).
9. Delay giving rise to uncertainty, suspense and anxiety should be given weight on sentence as a mitigating factor. [14] Delay can be a relevant factor on a number of levels and it may not always be necessary to establish some detriment to the offender. Being kept in a state of uncertain suspense whilst awaiting sentence would ordinarily be sufficient to require the sentencing judge to give some weight to the delay as a mitigating factor.
10. However, the relevance of delay as a mitigating factor on sentencing in a matter such as this is a question of weight. That is how her Honour treated delay. She declined to give it any significant weight for the reasons she identified. In particular, she was not satisfied that, in the circumstances of this particular case on the evidence before her, the appellant had suffered any detriment as a result of the delay.
11. This finding must also be considered in the light of her Honour's findings as to the progress of rehabilitation (which is a factor that informs the extent to which weight should be given to the delay as a mitigating factor). Importantly, her Honour was not satisfied that the process of rehabilitation had been completed during the period of delay.
12. The determination of weight to be given to any particular factor in mitigation as part of the sentencing process, including delay, is a discretionary exercise by the sentencing judge. [15]
13. In this matter: 1. her Honour did consider the delay; 2. the period of delay is not excessive or significant; 3. her Honour considered the delay as a factor but declined to give much weight to it as a factor; and 4. her Honour made an express finding that she did not consider that the period of delay was sufficient to result in the appellant not receiving any further custodial sentence.
14. These were matters within the discretion of her Honour.
15. I do not accept that her Honour erred in declining to give such weight to the factor of delay as to result in a conclusion that no custodial sentence should have been imposed on the appellant.

Error 3

1. The appellant submits that her Honour erred in failing to properly consider the fact that he had given assistance to the Police as a mitigating factor. The appellant submits that her Honour cast doubt on the motivation of the appellant in providing such assistance (that is, he only provided assistance closer to the hearing as a means of gaining some benefit from the assistance).
2. I accept that the giving of assistance is a factor to be taken into account as part of the sentencing process. Further, it must be that the motivation of the offender in providing assistance (that is, to obtain a benefit) should not disqualify an offender from assistance being taken into account (as it may be likely that most offenders have in mind some potential benefit to them in providing the assistance).
3. I thus accept the principle advocated on behalf of the appellant, but the difficulty for the appellant is that, once again, it could not be said that her Honour did not consider and have regard to the assistance given by the appellant as part of the sentencing process. She made findings that: 1. the Police had not been particularly impressed by the offer of assistance; 2. the assistance offered seemed to peter out; 3. the assistance was of limited value; and 4. the level of assistance was not such that it should provide exoneration to the appellant or mean that there should be no further non-parole period.
4. The appellant submits that the fact of assistance should have resulted in there being no custodial sentence imposed on him. Her Honour addressed that point. She rejected the proposition that the assistance given by the appellant should result in there being no custodial sentence imposed. She did so not merely because of the motivation of the appellant. She did so because she made all of the findings set out above.
5. Again, the appellant has failed to demonstrate error in the way in which her Honour exercised her discretion in affording such weight as she considered appropriate to the fact of assistance given by the appellant to the Police.

Conclusion

1. Mr McMahon accepts that if the rehearing is not a hearing de novo, then it would be necessary for the appellant to demonstrate error on the part of the learned magistrate.
2. The appellant has not demonstrated that the new non-parole period is excessive and has not demonstrated any other error. As the appellant has failed to establish error, the appeal and the summons are dismissed.

Endnotes

1. (2011) 242 CLR 573; [2011] HCA 10 at [56]‑[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
2. [2016] NSWCA 290 at [59].
3. [2014] QSC 62.
4. R v Cant [2014] QCA 334 at [29] (Morrison JA, Gotterson JA and McMeekin J agreeing).
5. (2007) 230 CLR 89; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
6. See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); [1993] HCA 15.
7. Engelbrecht at [92].
8. (2000) 203 CLR 194; [2000] HCA 47 at [13]‑[14] (Gleeson CJ, Gaudron and Hayne JJ).
9. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
10. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73]; R v Cramp [2004] NSWCCA 264 at [36].
11. [1982] 2 NSWLR 517 at 519-520.
12. (1988) 166 CLR 59 at 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.
13. [1999] NSWCCA 121; 106 A Crim R 303 at [16].
14. R v Schwabegger [1998] 4 VR 649 at 659; R v Gay [2002] NSWCCA 6 at [17] (Mason P, R S Hulme and Hidden JJ agreeing); Sabra v R [2015] NSWCCA 38 at [33] (Bellew J).
15. Hudson v R [2016] NSWCCA 278 at [61]-[64] (Hoeben CJ at CL, R A Hulme and Schmidt JJ agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2020