R v Atkin

Criminal Appeal Act 1912 - s 5D LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 - s 25(1) Crimes (Sentencing Procedure) Act 1999 - ss 32, 50(1) DECISION : The Crown appeal is dismissed.

1 HOWIE J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against what is asserted to be the inadequacy of sentences imposed upon the respondent by his Honour Judge Bellear at the Moree District Court on 18 October 2000. 2 On 16 October 2000 an indictment was presented to his Honour containing four counts of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. On being arraigned on that indictment the respondent pleaded guilty to each count. In addition, the respondent asked the sentencing judge to take into account three matters contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 3 In respect of the first offence on the indictment Judge Bellear sentenced the respondent to imprisonment for two years six months and set a non-parole period of twelve months. Both the sentence and non-parole period were to commence on 23 February 2000 and the non-parole period was to expire on 22 February 2001. 4 In respect of each of the other three counts on the indictment his Honour sentenced the respondent to a fixed term of six months to commence on 23 February 2000 and to expire on 22 August 2000. 5 His Honour did not, as he was required to do by s 50(1) of the Crimes (Sentencing Procedure) Act 1999, make an order directing the release of the respondent to parole at the end of the non-parole period. However, the failure to make such an order does not invalidate the sentence imposed by his Honour. His Honour did indicate that the respondent was to be supervised during the course of his parole period by the Probation and Parole Service and was to accept every reasonable direction from that service in relation to drug and alcohol rehabilitation and with regard to psychological counselling and assessment. 6 In respect of each offence on the indictment the drug supplied was methylamphetamine and the maximum sentence prescribed is fifteen years imprisonment or 2,000 penalty units or both. 7 The first count in the indictment alleged a supply of a prohibited drug on 7 November 1998. On that date, a vehicle driven by the respondent was stopped by police and searched. In a back pack the police located a pair of blue jeans. In the pocket of those jeans was found a film canister in which there were two resealable plastic bags. One plastic bag contained 10.3 grams of methylamphetamine with a purity of 2 per cent. The other smaller bag contained 2.5 grams of methylamphetamine, with a purity of 15 per cent. 8 Also located in the back pack were a number of empty resealable plastic bags, a set of electronic scales, a teaspoon, a straw and a plastic jar containing glucodine. The methylamphetamine was said to have an estimated street value of $2,500. 9 Although when interviewed by police the respondent denied any knowledge of the drugs, by pleading guilty to the first count in the indictment the respondent accepts that he had those drugs in his possession for the purpose of supply. 10 The offences which gave rise to the three remaining counts on the indictment all occurred while the respondent was on bail for the first offence. 11 During February 2000 an undercover police officer acting as part of an authorised operation, purchased methylamphetamine from the respondent on three occasions. The first one was on 7 February. The officer attended the home of the respondent and purchased 0.2 of a gram of methylamphetamine for $100. This transaction gave rise to the second count on the indictment. 12 The next day, 8 February, the undercover officer made contact with the respondent and they arranged to meet near a bus shelter in Narrabri. A short time later the respondent met the officer at the designated place and supplied him with a weight of amphetamine for $100. This supply gave rise to the third count on the indictment. 13 On 9 February the undercover officer again contacted the respondent and they arranged to meet so that the officer could purchase some drugs. The respondent and the officer met at the pre-arranged place and the respondent again supplied the officer with a weight of methylamphetamine for $100. The fourth count in the indictment related to this supply. 14 The respondent was arrested on 23 February 2000 and was refused bail. 15 Of the three matters set out on the Form 1, each occurred in 1998. The first offence was the possession of a small amount of cannabis on 7 November. The second offence was the cultivation of two cannabis plants between 1 July and 31 October. The third offence was the possession of an implement to smoke cannabis, on 7 October 1998. 16 The respondent was born on 20 February 1958. Before his arrest he was the prime carer for two children aged 10 and 5 years following the breakdown of his marriage. The mother of those children was killed in a car accident shortly after the prisoner was arrested. He has over a lengthy period abused both alcohol and drugs. There are a number of convictions in the respondent's record for possessing and using prohibited drugs. 17 However, the respondent told the Probation officer who prepared a report for the Court that at the time of the offences he was not using excessive amounts of any drug. He said the prime motive in his offending was profit and that the proceeds were used, in part, to pay living expenses. There was evidence given at the sentence hearing that the respondent had reached a stage where he was prepared to make an effort at reform. The respondent had participated in some drug and alcohol rehabilitation while in custody prior to sentence. 18 The sentencing judge found that there were special circumstances justifying a shorter non-parole period by reason of the fact that the respondent's children had been placed in care while the respondent was in custody and because of the respondent's need for rehabilitation which the judge described as "dire". 19 The Crown does not suggest that the sentences which were imposed by his Honour were manifestly inadequate either in their total length or in respect of the non-parole period specified. The Crown contends that his Honour erred in backdating the sentences to commence on 23 February 2000, the date upon which the respondent was taken into custody for the offences on the indictment and, as a result, the sentence imposed was manifestly inadequate. 20 To understand this submission, it is necessary to refer to events that occurred after the respondent was taken into custody on 23 February 2000. On 1 May the respondent was sentenced in the Local Court to six months imprisonment for an offence of drive whilst disqualified. This offence was committed on 15 November 1999. The respondent had failed to appear at Gunnedah Court on 6 December 1999 and a warrant issued for his arrest. The sentence imposed on 1 May was ordered to commence from 23 February, the date the respondent entered custody for the drug offences. That sentence expired on 22 August 2000. 21 On 19 May 2000 the respondent was again sentenced to imprisonment for an offence of driving whilst disqualified. This offence occurred on 17 November 1999. The sentence imposed was eight months imprisonment to commence on 16 May 2000. That sentence expired on 15 January 2001. There is some question as to whether the magistrate had power to impose that sentence, but in fact the sentence still remains and the respondent served that sentence in custody. 22 By backdating the sentence he imposed to commence on the date upon which the respondent went into custody, Judge Bellear in effect made the sentences concurrent with those imposed for the two driving offences, and required that the respondent serve only another forty days after the expiration of the second sentence for driving whilst disqualified, before being released to parole. 23 The Crown's submission is that his Honour erred by taking into account the period that the respondent had been in custody, which was attributable to sentences imposed for other offences. The Crown submits that, as the offences before his Honour were separate and distinct acts of criminality from the driving offences, the sentence imposed by him ought to have reflected that fact, and should have been made cumulative to the sentences imposed for the driving offences. 24 Mr Byrne SC, who appears for the respondent, submitted that it was open to his Honour in the exercise of his discretion to backdate the sentences as he did. Mr Byrne submits that although it was a relevant matter that the respondent had been serving sentences whilst on remand for the drug offences, it was not conclusive as to the approach his Honour was to take in determining when the sentences imposed by him were to commence. 25 Mr Byrne has submitted that the driving matters were relatively minor, having regard to the seriousness of the offences before the sentencing judge, and that the imposition of the sentences for those matters did not alter the fact that the respondent was in custody, having been bail refused on the supply offences. It was further submitted that the proper course which Judge Bellear was to follow was to impose a sentence which reflected the total criminality of the offences committed by the respondent, including the driving offences, and that it cannot be said that the sentence imposed does not achieve that end. 26 In my view, in all the circumstances of this case, Judge Bellear erred by commencing the sentences from the date on which the respondent entered custody. By doing so, the sentences imposed upon the respondent became inadequate to reflect the total criminality for which the respondent was to serve in custody. The respondent had a very long record for traffic and other offences dating from 1996. Of particular importance is the fact that he has, on my reckoning, thirteen offences for driving while disqualified. The offence for which he was sentenced on 19 May was committed just two days after the offence for which he was sentenced on 1 May. 27 In the light of this record, the two offences of drive whilst disqualified took on a much more serious complexion than might have been the case had the respondent not been a repeat offender in this regard. The respondent has shown that he is prepared to drive a motor vehicle without any regard to orders made by courts disqualifying him from doing so. Such contumacy demanded that the respondent serve an appropriate sentence in order to deter him from such conduct in the future, and to signify the seriousness of this type of conduct to others in the community. 28 By backdating the sentences for the drug offences so that they in effect swallowed up the sentences for the driving offences, his Honour rendered the sentences imposed by the Local Court ineffective in punishing the respondent for what were serious offences. The criminality involved in the offences before Judge Bellear was separate and distinct from the driving offences. 29 The totality of the criminality involved in the supply offences and the two driving offences was not, in my view, appropriately reflected by the sentences imposed by Judge Bellear. His Honour was obliged to require the respondent to serve some part of the sentence for the supply offences cumulatively upon the driving offences. In particular, the minimum period that the respondent was to serve before release to parole was inadequate in my view to reflect the seriousness of the offences for which he was imprisoned, and the need for both specific and general deterrence. 30 As I have indicated, in my opinion Judge Bellear erred by backdating the sentences to commence from the date the respondent entered into custody for the drug offences. However, I believe that this Court should exercise its discretion and dismiss the Crown appeal. The respondent is due for release to parole in three days' time. Any sentence imposed to redress the error made by Judge Bellear, and taking into account double jeopardy arising from the Crown appeal, would not be so great as to warrant this Court extending the respondent's sentence, and disappointing his expectation of release next Friday. 31 Further, the Crown did not sufficiently indicate to his Honour that he would be in error if he backdated the sentence. In fact, it was the Crown who foreshadowed that the defence was going to make a submission that any sentence imposed should be backdated to the date the respondent went into custody. Having raised the matter, the Crown ought to have made its objection to that course perfectly clear. It did not do this, but rather expressed its attitude in somewhat equivocal terms. It may well have misled the sentencing judge as to the appropriateness of the course he followed. 32 I propose that the Crown appeal should be dismissed. 33 MASON P: I agree. 34 WHEALY J: I agree. 35 MASON P: The Crown appeal is dismissed.

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