Parkes v R

Judgment 1EMMETT JA: The question in this appeal is whether the sentencing judge erred in not giving effect to a finding made by her Honour of special circumstances. The appellant was sentenced in the District Court on two counts of possession of a prohibited firearm, two counts of selling a prohibited firearm and one count of recklessly causing grievous bodily harm. The total effective sentence imposed was imprisonment consisting of a non-parole period of six years and six months with a balance of term of two years and six months. The appellant complains that the ratio in the overall effective sentence imposed by the sentencing judge between the non-parole period and the total sentence is 72% and that that does not adequately reflect the finding of special circumstances. 2I have read the reasons of Price J in draft form. I agree with the orders proposed by his Honour for the reasons proposed by him. 3PRICE J: As this appeal involves a single issue which has been conceded by the Crown my reasons for upholding the appeal will be brief. The sole ground of appeal that the appellant relies on is that the sentencing judge erred in not giving effect to her finding of special circumstances. The grounds of appeal identify five other grounds, all of which have been abandoned by the appellant. 4The appellant was sentenced in the District Court on 16 December 2011 as follows: (i) Possession of a prohibited firearm on 12 August 2010 contrary to s 7(1) Firearms Act 1996; imprisonment comprising a non-parole period of 2 years commencing on 13 October 2011 and expiring on 12 October 2013 with a balance of term of 1 year commencing on 13 October 2013 and expiring on 12 October 2014. (ii) Selling a prohibited firearm on 12 August 2010 to a person unauthorised to possess it contrary to s 51(1A)(a) Firearms Act; imprisonment comprising a non-parole period of 5 years commencing on 13 October 2011 and expiring 12 October 2016 with a balance of term of 2 years 6 months commencing on 13 October 2016 and expiring on 12 April 2019. (iii) Possession of a prohibited firearm on 2 September 2010 contrary to s 7(1) Firearms Act; imprisonment comprising a non-parole period of 2 years commencing on 13 April 2012 and expiring on 12 April 2014 with a balance of term of 1 year commencing on 13 April 2014 and expiring on 12 April 2015. (iv) Selling a prohibited firearm on 2 September 2010 to a person unauthorised to possess it contrary to s 51(1A) (a) Firearms Act; imprisonment comprising a non-parole period of 5 years commencing on 13 April 2012 and expiring on 12 April 2017 with a balance of term of 2 years 6 months commencing on 13 April 2017 and expiring on 12 October 2019 (CAN H42510466/004). (v) Recklessly causing grievous bodily harm on 14 June 2010 contrary to s 35(2) Crimes Act 1900; imprisonment comprising a non-parole period of 3 years 4 months commencing on 13 October 2010 and expiring on 12 February 2014 with a balance of term of 1 year 2 months commencing on 13 February 2014 and expiring on 12 April 2015. 5The sentencing judge had been asked by the appellant to take into account on sentence an offence on a Form 1 that involved the possession of a small amount of cannabis. 6The total effective sentence imposed as a result of partial accumulation and concurrence was imprisonment comprising a non-parole period of 6 years 6 months commencing on 13 October 2010 and expiring on 12 April 2017 with a balance of term of 2 years 6 months commencing on 13 April 2017 and expiring on 12 October 2019. 7During her remarks on sentence, the sentencing judge found special circumstances being the appellant's "youth and his need ...for substantial supervision and guidance post release" (ROS 11). Her Honour considered that the appellant "will require assistance in financial control issue[s], substance abuse prevention, violence prevention and some thoughtful assistance in addressing his past violent upbringing" (ROS 11). 8The appellant's complaint is that the ratio in the overall effective sentence between the non-parole period and the total sentence is 72 per cent which the appellant contends does not adequately reflect the finding of special circumstances. The appellant does not contend that the overall head sentence of 9 years is excessive but submits that the non-parole period should be reduced. 9The Crown supports the appellant's argument that her Honour erred in not giving effect to the finding of special circumstances. The Crown submits that the sentencing judge's variation in the statutory ratio is very minor and it appears that her Honour made a mathematical error such that the ratio does not reflect her stated intention. The Crown pointed out that the non-parole period in three of the individual sentences is 66 per cent of the total of these sentences. 10In Stoeski v R [2008] NSWCCA 230, I said (Allsop P and Johnson J agreeing) at [25] - [26]: Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. The size of an adjustment to the statutory ratio special circumstances having been found is essentially a matter within a Judge's discretion. As was observed by Spigelman CJ in Regina v Cramp [2004] NSWCCA 264 at [31] the size of an adjustment for special circumstances "raises so many matters of a discretionary character that this court should be very slow to intervene" and will not usually be interfered with unless the non-parole period is found to be manifestly inadequate or manifestly excessive: see Cramp per Spigelman CJ at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. There have been cases where this Court has intervened where it seems that the proportion of an effective non-parole period to an overall sentence has failed to give effect to a finding by a Judge of special circumstances: see for example Cicekdag v Regina per James J at [50]. The ultimate constraint, as was explained by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at [63], upon a sentencing Judge's discretion following a finding of special circumstances, is that: "...the non-parole period must itself appropriately reflect the criminality involved in the offence." 11The offences for which the appellant has been sentenced are serious. In short, the firearms offences involved two sales by the appellant of non-commercially manufactured 9mm submachine guns, with large capacity magazines and sound suppressors to an undercover police officer for $15,000 each. The sentencing judge found that the sale of the firearms was a planned or organized criminal activity in which the appellant was a minor player, as the final conduit between others more highly involved in the manufacture and supply of larger quantities of weapons. 12As to the offence of recklessly inflicting grievous bodily harm, the appellant, unprovoked by the victim had run up to him and punched him on the left side of his face. The victim was knocked unconscious. The injuries that the victim sustained as a result of the assault include a left orbit-zygomatic fracture of the cheek, permanent nerve damage to the left side of the face, some loss of vision in the left eye and two broken front teeth. Her Honour noted that the injuries suffered by the victim were significant but not in the worst category for an offence of this type. Her Honour found that the offence was below the mid-range of seriousness. 13The material before the sentencing judge justified a finding of special circumstances. At the time of sentence, the appellant was a 23 year-old single man, with a minor criminal record as an adult. He had a history of chronic and quite severe poly-substance abuse, but was a person of average or better intelligence. Her Honour found that the appellant was motivated to avoid relapsing into substance abuse and had the support of his family. 14Given the Crown's concession, I am persuaded that the adjustment in the statutory ratio by only three months was not intended by her Honour and a mathematical error has occurred. The Crown does not submit that an effective non-parole period of less than 6 years 6 months does not appropriately reflect the criminality involved in the appellant's offending. The appellant is to be re-sentenced. 15The principal finding by her Honour of special circumstances was the appellant's need for supervision upon release. Clause 228 of the Crimes (Administration of Sentences) Regulation 2008 limits the amount of supervision that the appellant may receive on parole to 3 years. 16It appears from the affidavit of the appellant's solicitor that the appellant is making an effort to overcome his substance abuse whilst in custody. He has been an active participant in the Intensive Drug and Alcohol Treatment Program and has undertaken other educational courses. 17In my opinion, the total effective sentence should be 9 years with a non-parole period of 6 years. 18Accordingly, the orders I propose are: