Makarov v R

CATCHWORDS: CRIMINAL LAW - successful and unsuccessful appeals against conviction - certain sentences quashed - variation of commencement dates of remaining sentences under s.59 Crimes (Sentencing Procedure) Act 1999

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Legislation Amendment Act 2003 Criminal Appeal Act 1912

Makarov v R (No. 1) [2008] NSWCCA 291 Makarov v R (No. 2) [2008] NSWCCA 292 CASES CITED : Makarov v R (No. 3) [2008] NSWCCA 293 R v O'Donohue (No. 2) [2001] NSWCCA 495 R v Pham [2004] NSWCCA 263

PARTIES: Victor Makarov (Appellant) Regina (Respondent)

COUNSEL: Mr DG Giddy, Solicitor (Appellant) Mr L Babb SC; Ms M Rabsch (Respondent)

SOLICITORS: Giddy & Crittenden (Appellant) Solicitor for Public Prosecutions (Respondent)

LOWER COURT JUDICIAL OFFICER: Her Honour Judge Hock

IN THE COURT OF CRIMINAL APPEAL 2007/3252

BELL JA JOHNSON J McCALLUM J

19 December 2008 VICTOR MAKAROV v REGINA (No. 4) Judgment 1 BELL JA: I will ask Johnson J to deliver the first judgment. 2 JOHNSON J: On 9 December 2008, the Court as presently constituted gave judgment with respect to appeals against conviction arising from three separate trials. The appeals against conviction with respect to two trials were dismissed: Makarov v R (No. 1) [2008] NSWCCA 291; Makarov v R (No. 2) [2008] NSWCCA 292. The appeal against conviction was allowed with respect to the third trial, with consequential orders being made quashing the convictions and sentences and ordering new trials: Makarov v R (No. 3) [2008] NSWCCA 293. 3 Because of the orders of the Court in Makarov v R (No. 3), application is made to the Court under s.59 Crimes (Sentencing Procedure) Act 1999 to vary the date of commencement of a number of sentences imposed upon the Appellant for offences in relation to which the appeal against conviction was dismissed. 4 The unsuccessful appeal in Makarov v R (No. 1) concerned offences committed by the Appellant against D. For these offences, on 28 January 2005, her Honour Judge Latham (as her Honour then was) sentenced the Appellant to an effective head sentence of 12 years' imprisonment to date from 10 December 2004 and to expire on 9 December 2016 with a non-parole period of eight years to date from 10 December 2004 and to expire on 9 December 2012. Those sentences remain undisturbed following the appeal. 5 The unsuccessful appeal against conviction in Makarov v R (No. 2) related to offences against A. On 11 November 2005, her Honour Judge Hock sentenced the Appellant for those offences to an aggregate sentence of eight years' imprisonment to date from 10 December 2012 with an effective non-parole period of four years to expire on 9 December 2016. The present s.59 application relates to these sentences. 6 The successful appeal against conviction in Makarov v R (No. 3) concerned offences against B and C. On 11 November 2005, her Honour Judge Hock sentenced the Appellant for these offences to an aggregate term of nine years' imprisonment to date from 10 December 2009 with an effective non-parole period of six years to expire on 9 December 2015. These sentences were quashed as a result of the successful conviction appeal. 7 Section 59 is in the following terms: "59 Court may vary commencement of sentence on quashing or varying other sentence (1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court.

(2) If a person is subject to two or more sentences, this section applies to each of them.

(3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence.

(4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section.

(5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section." 8 The predecessor provisions to the present s.59, and their rationale, were considered in R v O'Donohue (No. 2) [2001] NSWCCA 495. Thereafter, s.59 was amended by the Crimes Legislation Amendment Act 2003 to enable variation of the commencement date of "any other sentence" and not only a "consecutive sentence". Section 59 in its present form was considered by this Court in R v Pham [2004] NSWCCA 263. There, Spigelman CJ (Hidden and Buddin JJ agreeing) held that, in the context of an appeal to the Court of Criminal Appeal, the word "court" in s.59(1) meant the Court of Criminal Appeal as an institution, and not the individual judges who constituted the bench in a particular matter. With respect to the function of the Court under s.59, the Chief Justice observed at [9]-[10]: "[9] Section 59 is a provision designed to serve pragmatic purposes: to ensure the efficiency and expedition of the administration of criminal justice. Its clear purpose is to permit variations consequential upon a sentence of imprisonment being set in a second matter by reference to the dates of the sentence imposed in the first matter. The pragmatic purpose of s 59 would be best served if the word 'court' is given a liberal construction so that the section is able to be applied with minimum cost and inconvenience.

[10] Its purpose is, in part, to ensure that it is not necessary to bring a further appeal in the second matter in circumstances where what is involved is, in the normal course, a mechanical exercise. That purpose is best served by ensuring that the task can be performed with a minimum degree of difficulty of an administrative character. …" 9 The s.59 function does not involve this Court proceeding as if on an application for leave to appeal against sentence under ss.5(1)(c) and 6(3) Criminal Appeal Act 1912. The term of a sentence or a non-parole period cannot be varied under the section: s.59(5). Rather, the Court is exercising the narrow and essentially mechanical task of varying the date of commencement of sentence. As the Chief Justice observed in R v Pham at [14], there may be cases in which factual disputes arise, for example, as to what allowance is to be made for the circumstance that a person may have been in custody for more than one reason. In this case, it has been necessary to consider the reasons for the Appellant being in custody at various times, clearly being the product of the various sentences which have been imposed. The Court has heard submissions today with respect to those issues. 10 Her Honour Judge Hock sentenced the Appellant at the same time on 11 November 2005 for the offences committed against A, B and C. A single set of remarks on sentence encompassed the sentencing decision for all these offences. By that time, the Appellant had been sentenced by her Honour Judge Latham for the offences against D. Before imposing individual sentences, her Honour Judge Hock observed (ROS10): "I have fixed the appropriate sentence for each offence and then considered the questions of cumulation or concurrence. There will be partial accumulation of sentences, including the sentences previously imposed, in order to reflect the principle of totality. I have found special circumstances because there is accumulation of sentences. However, the overall sentence is in accordance with the statutory ratio, as this period will provide adequately for the offender's reintegration into the community. In my view, no lesser non-parole period than that imposed would reflect the very serious criminality displayed by the offender over these years and in respect of the four complaints." 11 On the present application, Mr Giddy, for the Appellant, submits that the appropriate order to be made under s 59 would see a variation of the date of commencement of the sentences for the offences against A, involving a reduction of the additional non-parole period by a period of more than half. 12 The Crown accepts that there should be some adjustment of the commencement date to take into account the fact that the convictions have been quashed with respect to the counts concerning B and C. The Crown notes that multiple victims and discrete offending usually require partially consecutive sentences, and it is to be expected that the total effective sentence imposed by her Honour Judge Hock was increased by the offending against B and C. The Crown submits that any adjustment should ensure that the adjusted commencement date provides for a total effective sentence that reflects the high objective criminality of the offending in this matter. 13 The submissions made today, within the confines of s.59, have touched upon issues of totality, concurrence and accumulation and indirectly, special circumstances. 14 Having regard to the submissions made, in all the circumstances, I am satisfied that the appropriate order in this case is to vary the date of commencement of the sentences for offences against A so that they commence on 10 December 2010, and not 10 December 2012. Accordingly, I propose orders varying the date of commencement of sentences imposed upon the Appellant on 11 November 2005 for offences committed against A as follows:

(a) with respect to Counts 1, 2 and 4, the sentence of imprisonment for three years is to date from 10 December 2010 and to expire on 9 December 2013;

(b) as to Counts 5 and 6, the sentence of imprisonment for four years is to date from 10 December 2010 and to expire on 9 December 2014;

(c) as to Counts 3 and 7, the non-parole period of four years is to commence on 10 December 2010 and to expire on 9 December 2014 with a balance of term of two years to commence on 10 December 2014 and to expire on 9 December 2016;

(d) as to Count 8, the non-parole period of four years is to commence on 10 December 2010 and to expire on 9 December 2014 with a balance of term of four years to commence on 10 December 2014 and to expire on 9 December 2018. 15 Upon the basis of these varied commencement dates, the earliest date upon which the Appellant will be eligible for release on parole is 9 December 2014. 16 BELL JA: I agree with the orders proposed by Johnson J for the reasons that his Honour gives.

17 MCCALLUM J: I also agree with the order proposed by Johnson J for the reasons he gives.

18 BELL JA: The orders of the Court are as Johnson J has proposed.

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