R v Barlow

Court of Criminal Appeal (NSW)|2010-07-27|Before: Allsop P, Price J, McCallum J, Charteris J, Callum J

JUDGMENT OF: Allsop P at 1; Price J at 4; McCallum J at 8

i. Appeal allowed in part; DECISION: ii. Sentence imposed on 23 April 2010 quashed; iii. In lieu, sentenced to a non-parole period of 13 months 2 weeks to date from 8 May 2010 and expire 21 June 2011, with a balance of term of 15 months to date from 22 June 2011 and expire 21 September 2012, to be served by way of periodic detention.

CATCHWORDS: CRIME - sentencing - crown appeal - whether judge gave inadequate weight as to objective seriousness of offence - whether erred in taking into account the need not to deter parents from reporting unlawful conduct of their children - whether sentence manifestly inadequate - sentencing discretion properly exercised

Crimes (Sentencing Procedure) Act 1999 (NSW) LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

R v MacDonnell [2002] NSWCCA 34 R v Ellis (1986) 6 NSWLR 603 Ryan v R [2001] HCA 21; (2001) 206 CLR 267 CASES CITED : R v Knight, R v Biuvanua [2007] NSWCCA 283 R v Cheh [2009] NSWCCA 134 R v McEvoy [2010] NSWCCA 110 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575

PARTIES: Regina Gregory Peter Barlow

COUNSEL: P. Miller (Crown) A. Francis (Respondent)

SOLICITORS: Solicitor for Public Prosecutions Legal Aid Commission

19 - IN THE COURT OF CRIMINAL APPEAL 2009/12010

ALLSOP P PRICE J McCALLUM J

22 September 2010 GREGORY PETER BARLOW v R Judgment

1 ALLSOP P: I have read the reasons in draft of McCallum J and the additional reasons of Price J. Subject to one comment, more by way of addition than qualification, I agree with both. I also agree with the orders proposed by McCallum J.

2 The comment relates to ground seven, concerning the use made by the sentencing judge of the fact that Mr Barlow's parents alerted the police to their suspicions about their son. I particularly agree with [46] of the reasons of McCallum J in this regard. The decision taken by Mr Barlow's parents could not have been easy. Realistically, it was a decision that many parents would baulk at. Even more would they baulk if they thought that the law would take it as a matter of no account in the sentencing process. Section 3A of Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the statutory purposes of sentencing. It finds its place in the judicial task. That task is informed by common sense, the protection of the public, fairness and humanity, all of which must attend the imposition of punishment in the name of the State. The actions of the parents of Mr Barlow were of a kind that common sense, the protection of the public, fairness and humanity all demanded to be taken account of in sentencing their son. The law should not deter parents, or other family members, from taking the course Mr Barlow's parents did here. It was not merely an act of a civic character, it was also no doubt a deeply distressing and fearful act - but one that objectively, and subjectively, promoted the objectives of sentencing by increasing the likelihood of the protection of the community, of the rehabilitation of Mr Barlow and of making him accountable for his actions.

3 For these reasons, I would reserve my position in relation to the kind of circumstances referred to in [47] of the reasons of McCallum J. Even if it were not apparent either that such an act by parents would assist the offender to appreciate what he or she had done or that it would make any difference to his or her rehabilitation, it might nevertheless still be seen to be relevant to the sentencing process as an act objectively conducive to such purposes. 4 PRICE J: I have had the opportunity of reading the judgment of McCallum J in draft. I am grateful for Her Honour's analysis of the facts and agree with her reasons and conclusion. This judgment, however, should not be seen in any way to detract from the longstanding emphasis by this Court that in a case of supply of not less than the commercial quantity of a prohibited drug, there is a need for sentencing judges "to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general": R v MacDonnell [2002] NSWCCA 34 at [35]. 5 There was in the present case a compelling subjective case for the respondent which the Judge earnestly considered. His Honour did not overlook the objective seriousness of the offence. Although the sentence imposed was lenient and one that I would not have imposed to be served by way of periodic detention, the Crown has demonstrated neither discrete error nor manifest inadequacy. 6 I agree with McCallum J's consideration of Ground 7 of the appeal at [42 - 48]. In my view, the co-operation of the respondent's parents with police was a matter to which the Judge was entitled to give some weight in assessing their son's prospects of rehabilitation. With the support of loving parents who were so concerned about his welfare as to contact police, the Judge could feel confident about the respondent's prospects of rehabilitation, as he then reacted positively to their intervention. 7 I agree with McCallum J. 8 McCALLUM J: Gregory Barlow pleaded guilty in the Local Court to a charge of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. That offence carries a maximum penalty of 20 years imprisonment and, pursuant to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999, is subject to a standard non-parole period of 10 years imprisonment. 9 Mr Barlow was committed to the District Court for sentence. On 23 April 2010, he was sentenced by Charteris DCJ to a term of imprisonment for two and a half years with a non-parole period of 15 months. His Honour ordered that the sentence be served by way of periodic detention. 10 The Crown appealed against that sentence under s5D of the Criminal Appeal Act 1912. After hearing the appeal on 27 July 2010, the Court indicated that, subject to one matter concerning the structure of the sentence, the Court did not propose to interfere with the sentence imposed. These are my reasons for coming to that conclusion. 11 Mr Barlow was nineteen at the time of the offence and was living at home with his mother and his step-father (whom he regards as his father). In early February 2009, the parents became concerned as to aspects of Mr Barlow's behaviour, which prompted them to search his bedroom and his car. They found $14,000 in cash in the boot of the car. In his bedroom, they found small quantities of substances they suspected to be drugs. 12 After some deliberation, the parents contacted police late one evening. Mr Barlow was not at home at that time. Police attended the home and Mr Barlow arrived by car shortly afterwards. He was asked whether there was anything in the car that he "should not have". He openly responded that there was $120,000 in cash in the boot, which he said was the result of the sale of some 10,000 tablets of ecstasy. 13 Mr Barlow agreed to an inspection of the car, during which police located $120,625 in cash and a small quantity of steroids. Mr Barlow subsequently agreed to be interviewed by police and gave them a full account of his involvement in two drug transactions. Those transactions had not previously been under investigation by police. Apart from the cash located in the boot of the car, the only evidence of the transactions available to police came from the information volunteered by Mr Barlow. 14 Police began the interview at 3am the following morning. Mr Barlow told them that, several months before the present offence, an acquaintance had asked him to obtain some ecstasy tablets. He was able to obtain the tablets from a person he knew, called Brad. Mr Barlow stated he did not expect to make any profit from that transaction - he thought he was just helping out a mate. 15 Mr Barlow told police that the number of tablets involved in that transaction was 10,000 and that the agreed price was $7.50 per tablet. He said that, when he and the buyer met to complete the drug transaction, they were robbed at gunpoint by three unidentified men who took both the drugs and the money. As a result of those events, Mr Barlow considered himself to be indebted to Brad, who had supplied the drugs but not received any payment for them. He was told he needed to get the money back to the suppliers. He feared that, if he did not repay the debt, he may be endangering his family. 16 In February 2009, Mr Barlow came in contact with a man he knew as Luke who wanted to obtain a large number of ecstasy tablets. He saw this as his opportunity to get out of debt with Brad. Mr Barlow agreed to obtain 11,000 ecstasy tablets, which he delivered to Luke. The $14,000 found by Mr Barlow's step-father, together with a further $106,000 Mr Barlow had collected on the evening of his arrest, made up the sum of $120,000 in cash found by police in the boot of his car. Mr Barlow was supposed to deliver the money to Brad the following morning. 17 Mr Barlow also disclosed in his interview with police that the drugs found in his bedroom were, firstly, some tablets he and his friends had found in an abandoned wallet in the city (they handed the wallet in but kept the tablets, assuming they were ecstasy); secondly a small amount of white powder that had been left in his room by a friend, which he thought was likely to be cocaine; and thirdly, an amount of steroids. Mr Barlow was charged with possession of those drugs. Those three offences were dealt with by the sentencing judge on a Form 1 in accordance with the procedure contemplated in section 33 of the Crimes (Sentencing Procedure) Act 1999. 18 Mr Barlow gave evidence at the sentence hearing disputing the accuracy of some of his answers to police recorded in the record of interview about the first transaction. He said that the first transaction had involved only 1000 ecstasy tablets rather than 10,000, as recorded by police. The Judge gave careful consideration to that evidence, and other evidence tending to support it. 19 The Judge said that he had approached Mr Barlow's evidence with "some scepticism" and a cautious approach. His Honour considered the circumstances of the interview, including the fact that it commenced after 3am and that Mr Barlow and the police officers present all looked tired. His Honour noted that, in the same month of his arrest, Mr Barlow had made a statement to the Crime Commission in which he said that the initial transaction was for 1000 pills at $7.50 per tablet. The Judge also noted the evidence of Mr Barlow's mother, who had been told the amount of money stolen, and thought she would have remembered if it was as much as $75,000. The Judge ultimately accepted Mr Barlow's evidence that there were only 1000 tablets supplied in the first transaction and that the so-called "debt" to Brad was $7,500, not $75,000. 20 The Judge found in relation to the first transaction that Mr Barlow was not to receive any financial benefit for his role and that he was "effectively the middle man", whose role was to take the tablets from a willing supplier to a willing purchaser. The Judge also accepted that Mr Barlow had looked on the transaction as "merely assisting a friend". As to the transaction the subject of the charge, his Honour was not satisfied that it was "for financial gain in the real sense". His Honour noted that Mr Barlow was concerned for his well-being and that he "foolishly decided to undertake the introduction between the parties so as to extinguish his debt". His Honour accepted that Mr Barlow was regretful for his behaviour and ashamed of himself. 21 A pre-sentence report tendered at the hearing described Mr Barlow as "somewhat naïve". In his remarks on sentence, the Judge expressed his agreement with that description. The Judge noted Mr Barlow's youth and said that the community has always acknowledged that young men, particularly of Mr Barlow's age, are prone to act in an immature way. The Judge referred to recent medical research providing objective support for the unexceptionable proposition that "the brain of the average male does not mature until he is in his early twenties, if not later". 22 Also before the sentencing judge was a report from a psychologist, which established that Mr Barlow had undertaken regular counselling following his arrest. There was a series of character testimonials to Mr Barlow's good character and favourable employment history. 23 A letter was tendered at the sentence hearing confirming that Mr Barlow had provided assistance to authorities and had agreed to provide further assistance in the future. The Judge found that Mr Barlow had done "all that could possibly be expected of him in that regard". The Judge gave a combined discount of 40% for that assistance and Mr Barlow's early plea of guilty. The Crown does not challenge that part of his Honour's decision. 24 His Honour found special circumstances warranting a departure from the statutory ratio between the non-parole period and the balance of term prescribed under section 44(2) of the Crimes (Sentencing Procedure) Act. There is no challenge to that finding. 25 The Judge also noted that Mr Barlow had openly disclosed the existence of two drug transactions which, in all probability, would not otherwise have come to the attention of police. His Honour noted that, in those circumstances, a considerable element of leniency should properly be extended by a sentencing judge in accordance with the principles stated in R v Ellis (1986) 6 NSWLR 603 at 604D per Street CJ, Hunt and Allen JJ agreeing. 26 The Judge also referred to the judgment of McHugh J in Ryan v R [2001] HCA 21; (2001) 206 CLR 267 at [12] where his Honour approved the principle stated by Street CJ in Ellis that the degree of leniency to be shown for the disclosure of unknown offences will vary according to the likelihood that the offences would have been discovered by the authorities and the likelihood that the offences could have been proven beyond reasonable doubt without the disclosure. 27 The Judge made findings favourable to Mr Barlow in respect of each of those issues. His Honour noted that the tablets the subject of the primary charge have never been found and therefore have never been analysed. It is not unknown for such analysis to disclose that a substance was not the prohibited drug it was presumed to be. The Crown could not have hoped to prove that element of the offence, but for what Mr Barlow told police and his plea of guilty. His Honour correctly observed that the Crown case against Mr Barlow rested entirely on his statement to police and his evidence at the sentence hearing. Grounds of appeal relied upon by the Crown 28 It is convenient first to consider grounds 4 to 7 relied upon by the Crown. Grounds 1 to 3 relate to the sentencing judge's consideration of the standard non-parole period applicable to the offence, which it is logical to consider in the context of the ground of manifest inadequacy. Ground 4: the weight given to objective and subjective features 29 The fourth ground of appeal is: The sentence failed to give proper weight to the objective seriousness of the offence and gave excessive weight to the respondent's subjective features.

30 As noted on behalf of Mr Barlow, a complaint alleging that insufficient weight was given to a relevant factor tacitly acknowledges that the sentencing judge did place some weight on that factor. It is well-established that the circumstances in which this Court will interfere with such matters, the determination of which properly fall within the discretion of the sentencing judge, are narrowly confined. 31 A similar principle must apply to a complaint that the Judge gave excessive weight to some feature of the case. The Crown contended that there was "almost no discussion [in the remarks on sentence] of the seriousness of the offence but a considerable discussion of the subjective matters". It is certainly the case that his Honour's remarks on sentence entailed detailed consideration of the subjective features of the case. However, I do not think that in itself demonstrates error. 32 The Judge was plainly acutely aware that the sentence he proposed entailed a considerable measure of leniency. The Crown had submitted that an order that the sentence be served by way of periodic detention would entail appellable error. That no doubt sharpened his Honour's focus on the task of articulating all of the considerations that led his Honour to take that exceptional course. 33 Separately, his Honour expressly acknowledged the seriousness of the offence and the need to punish Mr Barlow and to denounce his behaviour. He was plainly aware of the maximum penalty faced, and the standard non-parole period prescribed in the Table. His Honour carefully weighed those considerations with the requirement to address rehabilitation, which his Honour noted must be given greater weight in the case of a young person. Ultimately, as submitted on behalf of Mr Barlow, the determination of this ground must rest on the determination of the question of manifest inadequacy. Ground 5: the Judge's finding as to financial gain 34 Ground 5 is that his Honour erred in finding that the offence was not committed for financial gain. 35 The Judge said:

"I am not satisfied that it was for financial gain in the real sense. In [sic] think the offender considered himself in a very difficult position. He was concerned for his wellbeing and he foolishly decided to undertake the introduction between the parties so as to extinguish his debt. Certainly the financial benefit is not in the conventional sense." 36 I have difficulty understanding how it could be said that such a finding was not open to the sentencing judge. The Crown contends that, since Mr Barlow was seeking to have "a debt" of $7,500 cleared, his conduct could only be considered as being for the purpose of financial gain to him. 37 In my view, it is clear that his Honour regarded Mr Barlow's aim of eliminating a debt as a purpose in a different category from the case of a person who engages in the sale of drugs for profit. Mr Barlow had not derived any benefit from the circumstances in which he accrued the so-called debt to Brad. It was open to the Judge to regard those circumstances as being in a different category from the sale of drugs as a commercial undertaking.

38 Ground 6 is that His Honour erred in back-dating the sentence. 39 The sentence was imposed on 23 April 2010. At the conclusion of his remarks, the Judge said:

"The effect of my sentence is one of two and a half years imprisonment with fifteen months non-parole. I have allowed the offender the benefit of the forty-four days he served in custody. I therefore order that his period of periodic detention commence on 8 May 2010." 40 It was conceded on behalf of Mr Barlow that the sentencing judge erred in imposing a sentence that was partly comprised of a backdated period of full-time custody, with the balance to be served by way of periodic detention. 41 It was common ground at the hearing of the appeal that that was an error capable of correction under section 43 of the Crimes (Sentencing Procedure) Act. Counsel proposed agreed orders to give effect to that correction, which are set out at the conclusion of this judgment.

Ground 7: deterring parents from reporting offences to police 42 Ground 7 is that his Honour erred in taking into account a need not to deter parents from reporting their children's conduct to the authorities.

"I must take into account in determining the appropriate penalty not to deter parents from bringing to attention illicit behaviour of their children." 44 The Crown submitted that, whilst the co-operation of parents with the police or other authorities should be acknowledged, and indeed commended where appropriate, the perceived need "not to deter" such conduct was not a proper consideration in determining the appropriate sentence, since it rewards the child for the conduct of his or her parents. 45 It is uncommon for parents to act in the way Mr Barlow's parents did. Ms Francis noted that, as a consequence, a line of enunciated principle has not emerged on this issue. 46 In my view, the Crown's characterisation of the regard his Honour had to this question as a "reward" misconceives the purport of his Honour's remarks. The correctness of his Honour's approach must ultimately be analysed by reference to the purposes of sentencing specified in section 3A of the Crimes (Sentencing Procedure) Act. In my view, there is force in the contention put by Ms Francis on behalf of Mr Barlow that the disclosure by parents of criminal conduct on the part of their children ultimately promotes the purposes of sentencing. It is conducive to the protection of the community from the offender; to the promotion of the rehabilitation of the offender and, potentially, to making the offender accountable for his or her actions. 47 Ms Francis acknowledged that, in the case of an offender who does not "grasp such parental involvement and intervention", the impact of that consideration upon penalty would be negligible, if relevant at all. 48 That was not the position in the present case. Mr Barlow's immediate response to the attendance of police was one of open and contrite disclosure of matters otherwise unknown to police. The first difficult step towards rehabilitation having been taken out of his hands by parental intervention, Mr Barlow turned to that path with enthusiasm. The combination of those matters was a proper basis for the Judge to conclude that the purposes of sentencing could adequately be met by a less severe sentence than in the case of, say, an offender whose parents help him out the back window as police arrive at the front door. I do not think any error is disclosed. The standard non-parole period and manifest inadequacy 49 The remaining grounds are those relating to the standard non-parole period (grounds 1 to 3) and the ground of manifest inadequacy (ground 8). Grounds 1 to 3 are:

Ground 1: His Honour failed to adequately determine the objective seriousness of the offence.

Ground 2: His Honour failed to give reasons justifying the degree of departure from the standard non-parole period.

Ground 3: His Honour failed to pay sufficient regard to the standard non-parole period.

50 The Judge said: "In my view the offence falls below the middle range; in R v Way Spigelman CJ said that that range is a broad range. In my view the offender had foolishly tried to introduce a willing purchaser to a willing seller. He was obviously important in the transaction. He was to get no financial benefit. He was motivated by concern for himself and his family. I consider the criminality of it to be below the middle range." 51 The Crown's first complaint is that his Honour failed properly to state where the offence fell within the range of objective seriousness. It was submitted that his Honour should have identified whether the offence was "just below, moderately below or well below" the mid-range of objective gravity. 52 The Crown relied in particular on the remarks of Howie J and the separate remarks of McClellan CJ at CL in R v Knight, R v Biuvanua [2007] NSWCCA 283. In that case, the Court was critical of a finding (made for the purpose of applying a standard non-parole provision) that the objective seriousness of the offence was "at least in the mid-range". Howie J acknowledged that such an assessment cannot be made with absolute precision, but stated (at [39]): "it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding " (my emphasis). 53 McClellan CJ at CL at [4] said that, if a sentencing judge is of the view that an offence is above the mid-range, he or she should make that clear and should define the extent to which the offence falls above the mid-range. His Honour has subsequently stated that the Judge must turn his or her mind to that question "with precision": see R v Cheh [2009] NSWCCA 134 at [22]. 54 The Crown drew the Court's attention to a recent analysis of those principles by Simpson J in R v McEvoy [2010] NSWCCA 110 at [75] to [91] (Grove and RA Hulme JJ agreeing). Her Honour said that, to the extent that it may be perceived that there is any conflict between the approaches taken by McClellan CJ at CL and Howie J, her Honour preferred the "slightly less prescriptive" approach of Howie J. Even so, her Honour was of the view that the finding in that case fell short of what is required because it gave "no indication whether the offence fell substantially, significantly, or slightly below the notional mid-range offence". 55 As observed by Simpson J, it is not for a Court constituted by three judges to depart from considered principles stated and accepted by previous benches. Applying accepted principle, it must be acknowledged that the finding in the present case also falls short of what is required. However, as noted in McEvoy at [89], the error so identified is an error of process from which it does not necessarily follow that the finding was wrong. 56 What emerges from the careful analysis by Simpson J of the relevant requirements is that a sentence will not be demonstrated to be erroneous merely upon demonstration of a differential between the degree of departure from the notional mid-range offence and the degree of departure from the standard non-parole period. Where there is such a differential, the critical task is to consider whether it was warranted by other factors, such as the circumstances of the offender. Her Honour said (at [90] to [91]): "Leaving aside other relevant factors, such as personal circumstances, one would expect an offence classified as substantially below the mid-range of objective seriousness to incur a sentence substantially below the standard non-parole period; an offence slightly below mid-range of objective seriousness to incur a sentence slightly below the standard non-parole period; and the converse where the offence is slightly, significantly, or substantially above the mid-range of objective seriousness.

In fact, taking the approach proposed by Howie J provides some check against error. If an intended sentence has a non-parole period substantially below the standard non-parole period, but the offence is held to be slightly below the mid-range of objective seriousness, then a sentencing judge would be wise to examine whether other factors (for example, personal circumstances) warranted that differential . If they do not, the sentence should be re-considered: see Way , [124]" (my emphasis). 57 Although the Judge did not identify the degree to which the offence fell below the midrange in the present case, clearly enough his Honour was satisfied that the objective seriousness of the offence was significantly below midrange. Ms Francis, who appeared for Mr Barlow, submitted that the Judge's remarks should properly be understood as indicating that his Honour was of the view that the offence fell in the lower one third of objective culpability. The Crown acknowledged that it was open to his Honour to make that finding. The Crown submitted, however, that the sentence imposed was only consistent with a finding that the offence was towards the bottom of the third; a finding the Crown contended was not open.

58 On the premise that the objective seriousness of the offence was significantly below midrange, it may be accepted that there was a relevant differential. The degree of departure from the standard non-parole period was greater than the degree of departure from the putative mid-range offence. Was the differential warranted in the present case? The Judge gave careful attention to the "other factors", of which there were many. The question is whether, having regard to those factors, it may be concluded that the standard non-parole period was not given due regard. Before considering that question, I should make brief reference to the second and third grounds of appeal. 59 Ground 2 complains that the Judge failed to give reasons justifying the degree of departure from the standard non-parole period. To the extent that this is a complaint of inadequacy of reasons, it is not made out, in my view. Although his Honour did not explicitly relate them to his consideration of the standard non-parole period, the Judge was careful to articulate and analyse the many subjective factors to which his Honour had regard in reasoning towards the sentence imposed. Indeed, the fullness of his Honour's discussion of those matters is the subject of separate complaint under the Crown's fourth ground of appeal discussed above. 60 The substantive issue raised by ground 2 is whether the factors identified by his Honour warranted the degree of departure from the standard non-parole period allowed in this case. Ground 3, which alleges a failure to pay sufficient regard to the standard non-parole period, in effect raises the same issue. I now turn to that issue. 61 Standard non-parole periods were introduced by amendments to the Crimes (Sentencing Procedure) Act 1999 in 2003. The proper application of the new provisions was considered by this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 and restated in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. Those principles are now well established, notwithstanding some complexities in their application. 62 As explained in Way at [40], an offence in respect of which Parliament has prescribed a standard non-parole period has two statutory guideposts for consideration by the sentencing judge, the maximum sentence for the offence and the standard non-parole period specified in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. In addition, the sentencing judge is bound by statutory prescription as to the ratio between the non-parole period and the balance of the term of the sentence. Section 44(2) of the Crimes (Sentencing Procedure) Act provides that the balance of the term must not exceed one third of the non-parole period. The correctness of the sentence imposed in the present case must be determined in that context. 63 As already noted, the Judge allowed a discount of 40% for the early plea and assistance to police. The undiscounted sentenced was accordingly a total term of 4 years and 2 months. 64 Further, there was a very strong subjective case. The factors taken into account by the sentencing judge that warranted leniency were conveniently collected in Ms Francis' written submissions as follows: "he was only nineteen years and four months of age at the time of the offence; he was described, and his Honour was so satisfied, having observed him give evidence, to be somewhat naïve and hence susceptible to manipulation; he had no criminal record; he was a person of good character; he assisted fully in the investigation of the offence in circumstances where the only evidence available to the police was the possession of money in his boot. This was a factor which was additional to the utility of the pleas and the assistance; he was genuinely remorseful; he had evidenced considerable rehabilitation in the period between the offence and sentence some fourteen months later; he was found to be unlikely to re offend; he lived at home with his demonstrably law abiding parents who were supportive of him and his efforts at rehabilitation; it was his parents who alerted the police to their suspicions and concerns about the respondent. The importance of which is that they provided, and still provide, an environment which is conducive both to his rehabilitation and his observance of the requirements placed upon his conditional liberty; prospects of continued self improvement were irresistible in these circumstances; his motive was other than that of a profiteering drug dealer." 65 Ms Francis submitted that, having regard to those factors, it may be concluded that the Judge would have started (before taking them into account) at a total sentence in the order of six or seven years. Ms Francis noted that is roughly one third of the maximum penalty of 20 years, which is consistent with the premise that the offence fell in the lower one third of objective offending. She submitted that this analysis demonstrates his Honour did not fail to have proper regard to the maximum penalty. The Crown did not contend otherwise. 66 It must be acknowledged that Ms Francis' analysis implicitly assumes a linear relationship between the maximum penalty and the objective seriousness of the offence. It assumes that the worst offence will warrant imposition of the maximum penalty, the mid-range offence will warrant a term of imprisonment at the mid-point of the mathematical range and so on. That is a perfectly logical assumption, and one that is not uncommonly adopted in sentencing decisions. However, it does not accommodate the distorting effect of the standard non-parole prescribed for the present offence. 67 Applying her notional starting point of a total sentence of six or seven years, Ms Francis derived a non-parole period of between four years six months and five years four months, roughly 50% of the standard non-parole period. She submitted that was an entirely proper departure, where his Honour had determined that the offence was "in the low range". Of course, his Honour did not make that determination in terms. Further, the non-parole period ultimately imposed was proportionately further away from the standard non-parole period than can be explained by the figure derived by Ms Francis. 68 I am not satisfied, however, that the degree of departure was outside the proper sentencing discretion of the Judge. As his Honour noted, an important element of discretion remains nestling within the constraints of the statutory guideposts. The sentence imposed in the present case was one of great leniency where his Honour was plainly satisfied that great leniency was warranted, having regard to the compelling subjective case. I do not think the existence of the standard non-parole period mandated a less lenient approach in those circumstances. I am not satisfied that the degree of departure from the standard non-parole period in the present case was outside the Judge's sentencing discretion. 69 The second aspect of the leniency of the present sentence complained of by the Crown was his Honour's determination that the sentence be served by way of periodic detention. His Honour properly observed that exceptional circumstances were required before that determination could be made. He described it as a "very rare" circumstance that he would not impose full time custody in over seven years experience on the bench. Having said that, his Honour observed, further, that plainly there are cases where a periodic detention order may properly be made for the offence charged in the present case. The discretion to make such an order has not been removed. Those remarks reveal his Honour's view that this was an occasion for a very substantial measure of leniency. 70 The Crown accepted that the subjective circumstances in this case were "extremely cogent" but submitted that they were not sufficiently compelling to warrant the level of leniency attending the imposition of a sentence to be served by way of periodic detention. 71 The Judge was well placed, where this Court is not, to make that assessment. Evidence called at the hearing enabled his Honour to gauge the measure of the young man called for sentence before him. His Honour saw the indications of a healthy future after Mr Barlow had spent some 6 weeks in custody on remand and found it "pretty scary". Mr Barlow's progress following his arrest was underscored by robust family support. His Honour's reasons drew heavily on those matters. Having heard the evidence, his Honour was persuaded to take the concededly rare course of not imposing a sentence of full-time imprisonment. 72 That is the very territory in which this Court should be slow to intervene. This was a thoughtful and sensible exercise of judicial discretion with careful regard to the objects of sentencing. I am not satisfied that it miscarried. 73 For those reasons, the orders should be as proposed by Counsel for the parties to accommodate the conceded error identified under ground 6, as follows: i. Appeal allowed in part; ii. Sentence imposed on 23 April 2010 quashed; iii. In lieu, sentenced to a non-parole period of 13 months 2 weeks to date from 8 May 2010 and expire 21 June 2011, with a balance of term of 15 months to date from 22 June 2011 and expire 21 September 2012, to be served by way of periodic detention.

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.

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (4)