R v Chamberlain [2001] VSCA 159

7. On 27 February 2001 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging one count of trafficking in cannabis. Then, on 6 April the appellant was presented in the County Court at Melbourne on a further presentment and pleaded guilty to six counts, a further count of trafficking in cannabis (count 1), one count of being a prohibited person in possession of a firearm (count 2), one count of theft (count 3), two counts of falsification of documents (counts 4 and 5) and one count of making a false statement (count 6). The offence of trafficking was alleged against s.71 of the Drugs Poisons and Controlled Substances Act 1991, and the maximum penalty was 15 years' imprisonment. The maximum penalty for possession of a firearm was seven years' imprisonment, for theft and falsification of documents was 10 years' imprisonment, and for making a false statement was two years' imprisonment or a fine of $5,000.

10. The hearing of the plea in relation to the offences on both presentments was conducted on 6 and 23 April before the same judge. The appellant admitted four prior convictions from three previous court appearances, including convictions for murder and attempted murder in 1982 and a conviction for intentionally causing injury in 1991. During the plea evidence was called on behalf of the appellant from Ms Caroline Whitman, and a number of supportive references were tendered as well as certificates of completion of various courses.

13. On 9 May the appellant was sentenced on count 1 of the first presentment to 15 months' imprisonment, on count 1 of the second to 2 years' imprisonment, and on counts 2, 3, 4, 5 and 6 of the second to 12 months', 9 months', 6 months' and 6 months' imprisonment and a fine of $500 respectively. The sentencing judge made

orders in relation to the second presentment for cumulation of 6 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 3, and 3 months of the sentence imposed on count 4, making a total effective sentence of 3 years and 3 months' imprisonment. His Honour did not fix a non-parole period.

17. The circumstances giving rise to the offences were as follows. On 18 August 1998 police searched premises at 77 Gowrie Street, Glenroy and found there some 226 cannabis plants growing in an elaborate hydroponic system. In the lounge room were found 222 stems from cannabis plants drying, weighing approximately 1.67 kg. In the hallway was a cardboard box containing 775.4 grams of dry cannabis. A further 49.4 grams of cannabis were found in the hallway. The total found in the premises amounted to approximately 2.495 kg of dry cannabis, in addition to the 226 cannabis plants. The appellant was not the occupier of the premises, but his plea of guilty was put on the basis that he was involved in setting up the operation and assisted in the planting of the cannabis. These events gave rise to count 1 on the second presentment.

20. On the same day the police went to the appellant's home address at 65 Dalrymple Road, Sunbury and found another crop of 34 cannabis plants in a walled-off area at the rear of a shed on the property. More than 5.5 kg of dried cannabis were found at the premises together with hydroponic equipment and chemicals. These events gave rise to the single count on the first presentment. In the course of the search at 65 Dalrymple Road, the police found in the hot water service of the premises an unloaded unregistered Walther .32 calibre semi-automatic pistol with some ammunition (count 2 on the second presentment).

23. On 6 December 1999 the appellant was intercepted by police while driving his car. The vehicle was searched and in a bag between the front seats was found the appellant's wallet, which contained a Medicare card and Commonwealth Bank keycard in the name of James Briffa. The wallet also contained a false driver's licence and a false passport, both in the name of James Briffa, but in each case with the appellant's photograph. The Medicare card and Commonwealth Bank keycard had been stolen from James Briffa on or about 12 April 1999. These events gave rise to counts 3, 4 and 5 on the second presentment. Between 13 and 19 April the appellant had completed an application form for the issue of an Australian passport in the name of James Briffa, and in doing so produced a completed application form and supporting documents, and made application for the passport in the false name of James Briffa (count 6).

26. The appellant now appeals by leave granted pursuant to s.582 of the Crimes Act 1958 on 20 July 2001 on the grounds that -

1. The judge erred in failing to fix a non-parole period.

2. The judge erred in failing to have due regard to the period of 16 months the appellant had spent in gaol prior to sentence.

32. On 1 November 1982 the appellant was sentenced to life imprisonment for murder and 8 years for attempted murder. Then on 28 June 1989 a judge fixed a minimum term of 14 and a half years' imprisonment on the murder count. The appellant was released on parole on 15 April 1997. The offences of trafficking in cannabis and the firearms offence were all committed while the appellant was on parole. The Adult Parole Board then cancelled the appellant's parole on 11 September 1998. The remaining four offences, all of dishonesty, were committed after the cancellation of his parole, but while he was still at large as the police were unable to apprehend him until December 1999.

35. During the plea much attention was given to the question whether the sentences the judge was about to impose should be made concurrent or cumulative, having regard to s.16(3B) of the Sentencing Act 1991, and the fact that the appellant had been claimed by the Parole Board and had spent 16 months of "dead time", as it was called, in custody, in consequence of having breached his parole, pending the imposition of sentence. The judge said during argument that he would treat the two counts of trafficking on a global basis (a course from which the prosecutor did not seek to dissuade his Honour) imposing one penalty without making any order for cumulation. His Honour had also said during the plea that he would take into account in sentencing the 16 months already served, having in mind questions of totality, but not on an arithmetical basis.

38. On a number of occasions during the plea the question of a non-parole period was mentioned and the plea proceeded, I think, plainly on the basis that a non-parole period would be fixed. During sentencing reasons, however, the judge said -

"It is now common ground that the very real difficulties posed by s.16(3B) where, as here, three offences were committed while you were released on a parole order while four offences were committed after the order was cancelled, can legitimately be avoided by a finding which I now make. That because of the fact that you are serving a life sentence, exceptional circumstances arise. The fact that you have been sentenced to, and are serving, a life sentence of imprisonment constitutes exceptional circumstances. Consequently, s.16(3B) does not apply in your case. I therefore propose to impose a head sentence and following precedent and because of the circumstances, it is inappropriate to impose any non-parole period and I will direct that the sentence imposed be served concurrently with all sentences that you are undergoing."

42. Section 11(1)(b) of the Sentencing Act provides that if a court sentences an offender to be imprisoned in respect of an offence for a term of two years or more -

"the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate."

46. In other words, the fixing of a non-parole period is mandatory unless the court considers that (a) the nature of the offence or (b) the history of the offender or a combination of them makes the fixing of such a period inappropriate.

49. In this Court, Mr Elston for the Crown submitted that the judge had taken the view that the fact that the appellant was serving a life sentence constituted exceptional circumstances. In declining to set a non-parole period, his Honour had said he was following precedent and that statement had been made after having previously referred to R v. Taikmaskis.[1] In that case the judge had sentenced the appellant to a term of imprisonment with no minimum term, and directed that the head sentence be served concurrently with all sentences he was then undergoing. The appellant was at that stage already serving a life sentence for murder. That course had not, so it was said, been made the subject of adverse comment in the judgments in the Court of Criminal Appeal. Mr Elston submitted that the order made in the present case was indeed consistent with precedent. He submitted that whilst the judge did not particularise in point form why he did not impose a non-parole period, he did state that it was inappropriate to impose such a period after a fairly exhaustive analysis of the antecedents of the appellant and an analysis of the facts of the case. The focus of the plea having been on matters directly related to a non-parole period being fixed, it was submitted that the nature of the offences before the judge and the past history of the appellant made the fixing of such a period inappropriate. The judge clearly had a discretion, so the argument ran, as to whether to fix such a non-parole period or not and, in all the circumstances, his Honour's decision could not be described as an inappropriate exercise of that discretion.

52. With all respect to the very experienced sentencing judge, I think his Honour erred in this case in the process of deciding not to fix a non-parole period. This may well have been due to the fact that counsel did not draw his attention during argument to s.11(1) of the Sentencing Act. Section 16(3B) was not, I think, relevant having regard to the fact that the appellant is already serving a life sentence. It is well-established that once a prisoner has been sentenced to life imprisonment, any later offence can only be served concurrently because of the nature of a life sentence; Foy[2]; R. v. Jolley[3] and Taikmaskis (supra). Furthermore, in directing attention to s.16(3B) the judge was also considering whether exceptional circumstances existed which would justify not directing that a sentence be served cumulatively upon a sentence already being served, which must involve considerations quite different from the question whether the nature of the offences and/or past history of the offender justified not fixing a non-parole period.

55. In these circumstances it seems to me that the attention of the judge was not directed to the questions relevant to the exercise of the discretion in s.11(1)(b) not to fix a non-parole period. I accept, as Mr Elston argued, that there is such a discretion provided the judge has arrived at a view that the matters mentioned in the sub-section make inappropriate the fixing of a non-parole period. I do not suggest that circumstances might not have justified his Honour reaching the conclusion, having regard to the appellant's past history, that a non-parole period should not be fixed. But I cannot, with great respect, draw the inference from the sentencing reasons that the discretion was exercised in this way. As it seems to me, there is no basis for thinking that the judge's attention was directed to s.11(1)(b) of the Sentencing Act or that his Honour arrived at a view either as to the nature of the offences or the appellant's past history as a basis for concluding that it would be inappropriate to fix a non-parole period. Although the offences were serious, I should not have thought that there was anything in their nature to make inappropriate the fixing of such a period. The appellant's past history is a different question but it was not, I think, relied on by his Honour as a consideration under s.11(1)(b).

58. There is nothing in the legislation to suggest that an offender the subject of a life sentence who has served his minimum term in respect of that sentence and commits further offences should not have the benefit of a non-parole period being fixed in respect of those offences. The purposes and benefits of fixing a non-parole period[4] would seem to apply just as much in the case of an offender the subject of a life sentence who has served his minimum term in respect of that sentence. An

example of the imposition of a non-parole period upon an offender already serving a sentence of life imprisonment who commits a later offence is R. V. Jolley.[5]

62. There is nothing in the other grounds of appeal. The offences were serious, and the sentences imposed were extremely lenient. Indeed, they could only be justified on the assumption that the judge gave great weight to the 16 months the appellant had spent in gaol prior to sentence. The head sentences were also certainly not excessive.

65. I would therefore uphold ground 1. I would propose that this Court should leave standing the sentences originally imposed, but direct that a non-parole period of 2 years and 3 months be fixed. In so doing I also give great weight to the 16 months the appellant spent in gaol prior to sentence.

70. I agree that, for the reasons given by Charles, J.A., the appeal should be disposed of as proposed by him.

73. I would only add that the appellant's criminal conduct in which he engaged not long after he was released on parole casts real doubt about his prospects of rehabilitation. This view, however, does not alter my opinion that, in the particular circumstances of this case, the disposition of it as proposed by Charles, J.A. is appropriate.

78. I agree with Charles, J.A. that the judge was wrong in failing to fix a non-parole period. Prima facie, we should now make good this error. I say prima facie because before we interfere we must be satisfied that a different sentence should

have been passed, and because the appellant, as indeed Mr Tehan has intimated, would not wish us to allow the appeal and pass a different but more severe sentence upon him.

82. 23 In my view, the failure to fix a non-parole period in this case reopens the sentencing discretion in relation to the head sentences. I say this conscious of the discussion in R v. Sener [1998] 3 V.R. 749 of the effect of failure to fix a non-parole period. Mr Tehan has not suggested that the discretion is not reopened in relation to the head sentences.

85. I consider that, in all the circumstances of this case, including the fact that the trafficking offences and the firearms offence were committed while the appellant was on parole, almost all of these sentences are a good deal more lenient than those which should be imposed by way of re-exercising the sentencing discretion. I would have passed a longer head sentence in almost all cases and have passed a sentence of imprisonment on count 6, and I would have made cumulation orders which resulted in a total effective sentence substantially longer than the sentence of 3 years 3 months actually passed. I would have fixed a non-parole period not less than the total effective sentence passed by the judge. Thus, my re-sentencing would have disadvantaged the appellant. In the circumstances, I would simply have dismissed the appeal.

88. The order of the Court is as follows. The appeal is allowed. The sentence below is varied by the addition of an order fixing a non-parole period of 2 years and 3 months. Otherwise, the sentence below is confirmed.

91. This is no part of the order, but I add that since this Court is confirming the sentence of imprisonment rather than itself passing one, it is not appropriate to make a declaration with regard to pre-sentence detention.

96. Your Honour, I did wonder about that matter, because he has done 127 days.

101. Yes, in similar circumstances, a Court over which I presided, I am confident, has acted on this view; I think that when we confirm a sentence, we are doing no more to it than we do when we dismiss an appeal, which has the effect in law of confirming the sentence.

[1] (1985) 19 A.Crim.R. 383.

[2] (1962) 46 Cr.App.R. 290.

[3] [1982] VicRp 4; [1982] V.R. 46.

[4] See, e.g. R v. Bugmy [1990] HCA 18; (1990) 169 C.L.R. 525 at 538; R v. Mulvale, unreported, Court of Appeal, 20 February 1996, at pages 10-11.