R v Galati [2003] NSWCCA 148 | Case summary

1 JAMES J: Dominic Joseph Galati has applied for leave to appeal against sentences imposed on him in the District Court on 29 August 2002 by his Honour Acting Judge Shillington. 2 His Honour sentenced the applicant for four offences, namely (1) supplying a prohibited drug methylamphetamine on 16 October 2001, the quantity of the drug being 22.75 grams (2) supplying a prohibited drug 3.4 methylenedioxy methylamphetamine on 16 October 2001, the quantity of the drug being 19.04 grams (3) supplying a prohibited drug methylamphetamine on 17 January 2002, the quantity of the drug being 36.88 grams (4) supplying a prohibited drug methylamphetamine on 17 January 2002, the quantity of the drug being one gram. 3 In sentencing the applicant for the first offence the sentencing judge took into account thirteen other offences consisting mainly of offences of possession of prohibited drugs or possession of a prohibited weapons, such as a knuckle-duster or handcuffs. 4 For each of the first two offences his Honour imposed a fixed term of imprisonment of one year commencing on 18 January 2002, the sentences to be served concurrently. For the third offence his Honour imposed a sentence of three years, with a non-parole period of one year commencing on 18 January 2003. For the fourth offence his Honour imposed a fixed term of imprisonment of one year commencing on 18 January 2003. The sentences imposed amounted overall to sentences totalling four years, with a non-parole period or fixed terms of imprisonment totalling two years. All the offences were offences under s 25(1) of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for fifteen years and/or a fine of $220,000. 5 In order properly to understand the grounds of appeal relied on, it is appropriate to set out a short chronology of events. On 16 October 2001, after police surveillance of premises occupied by the applicant at Manly, a search warrant was obtained and executed. The drugs the subject of the first two offences and the drugs and items which were the subject of many of the offences taken into account in sentencing the applicant for the first offence were found during the execution of the search warrant. 6 On the same day the applicant was arrested and bail was refused. However, on 6 December 2001 the applicant was granted bail and on 11 December 2001 the applicant was released on bail. He had been in custody one month and twenty six days. 7 On 17 January 2002 another search warrant was executed at the same premises. The drugs the subject of the third offence were found during the execution of this search warrant, as was a ring which a purchaser had used to pay for the actual supply of a prohibited drug which was the subject of the fourth offence. Other items were seized which were the subject of some of the offences taken into account in sentencing the applicant for the first offence. It will be apparent that the third and fourth offences were committed while the applicant was on bail for the first two offences. The applicant was arrested on 17 January 2002 and he remained in custody until he was sentenced by Acting Judge Shillington on 29 August 2002. 8 On 9 April 2002 the applicant entered pleas of guilty in the Local Court and he was committed for sentence. On 29 August 2002, because there was some defect in the committal documents, the applicant was formally arraigned before Acting Judge Shillington and when arraigned he entered pleas of guilty. 9 In his remarks on sentence Acting Judge Shillington concluded that the applicant had been conducting a business of selling drugs from the premises at Manly. His Honour noted that the applicant had a lengthy criminal history, with convictions mainly for the possession and sale of drugs but also for offences of dishonesty and violence. His Honour referred to parts of a pre-sentence report. At the time of sentencing the applicant was a single unemployed man, thirty five years old. He had had what was described as a "fragmented" work history. He had had problems with addiction to drugs and alcohol from the age of seventeen. The applicant was described as immature and evasive, familiar with the criminal justice system, somewhat fragile, yet unwilling to accept responsibility for his own self-management and drug addiction. I will refer to other parts of his Honour's remarks on sentence later in this judgment. 10 Counsel for the applicant relied on two grounds in support of the challenge to the sentences imposed by his Honour, namely that (1) the sentencing judge erred in failing to discount the applicant's sentences for the utilitarian value of his pleas of guilty (2) the sentencing judge erred in failing to demonstrably take into account the applicant's pre-sentence custody from 16 October 2001 to 11 December 2001. I will deal with each of these grounds in turn. 11 (1) the sentencing judge erred in failing to discount the applicant's sentences for the utilitarian value of his pleas of guilty. 12 It is clear that his Honour was mindful that the applicant had pleaded guilty to all the charges. At the beginning of his remarks on sentence his Honour said that the applicant had entered pleas of guilty to the four charges. Later in his remarks on sentence his Honour said: "It is to be noted that the prisoner entered his plea of guilty to these matters before the Local Court so that he should be regarded as someone who has entered his pleas at the earliest possible opportunity". 13 Counsel for the applicant referred to what was said by the Chief Justice, with the concurrence of all the other members of a five judge bench of the Court of Criminal Appeal, in the guideline judgment on pleas of guilty R v Thomson; R v Houlton (2000) 49 NSWLR 383, especially at para 160 where the Chief Justice said: "The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount". 14 Counsel then relied on R v Lloyd (2003) NSWCCA 49, a decision of a two judge bench of this Court (O'Keefe J and Bell J) which was an application for leave to appeal from sentences passed by the same sentencing judge. 15 In Lloyd the sentencing judge had said in his remarks on sentence that the applicant had entered pleas of guilty at the earliest possible opportunity but had then said nothing further in his remarks on sentence about the pleas of guilty. At paras 21 and 22 of his judgment, with which Bell J agreed, O'Keefe J said:- "I am conscious of the fact that not quantifying the extent of reduction in sentence by reference to the utilitarian value of a plea of guilty does not necessarily involve an error ( Regina v Thomson and Houlton (2000) 49 NSWLR 383 at 401-402; Regina v Deluca [2002] NSWCCA 446), nonetheless, where there is no reference, either express or implied, to a discount for a plea of guilty, the absence of any quantification may tend to confirm that no discount has been given. In the present case, the absence of any reference to the utilitarian value of the pleas of guilty entered by the Applicant and the absence of any quantification, together with the length of the sentence imposed, lead to the conclusion that the utilitarian value of the pleas was not given effect to by the judge. This is an error, and in my opinion the second challenge to the sentences is made out". 16 It was submitted by counsel for the applicant that the present case was similar to Lloyd and that there should be a similar result. His Honour had not referred to the utilitarian value of the pleas of guilty. His Honour had not quantified any discount he had allowed for the utilitarian value of the pleas of guilty and the sentences his Honour had imposed were expressed in round figures, which suggested that no discount had been allowed for the utilitarian value of the pleas of guilty. 17 It was further submitted that in the present case, having regard to the time at which the pleas of guilty had been entered, an appropriate discount for the pleas of guilty would be twenty per cent. 18 The Crown Prosecutor submitted that it was quite clear from the remarks on sentence and from what had been said in the proceedings on sentence that the sentencing judge was aware of the pleas of guilty. The only point, or at least the principal point, of his Honour noting in his remarks on sentence that the applicant should be regarded as having entered his pleas at the earliest possible opportunity, a finding which might in fact have been unduly favourable to the applicant, was the relevance of that finding to a quantification of the discount for the utilitarian value of the pleas of guilty. 19 It was submitted by the Crown Prosecutor that the Chief Justice had made it clear in Thomson & Houlton that, while sentencing judges are encouraged to quantify the discount they are allowing for the utilitarian value of a plea of guilty, it is not essential for them to do so. 20 Reliance was sought to be placed by the Crown Prosecutor on the decision of a two judge bench of this Court, Greg James J and Carruthers AJ in R v Phillips; R v Simpson (2002) NSWCCA 167 which was another appeal from sentences passed by Acting Judge Shillington. It was pointed out by the Crown Prosecutor that in R v Phillips; R v Simpson a similar ground of appeal had been rejected. However, in that case his Honour, after being specifically asked by counsel for one of the prisoners (Simpson), to quantify the discount for the plea of guilty said: "She gets in effect the maximum remission or reduction in the sentence by reason of her plea of guilty". 21 Carruthers AJ who delivered the principal judgment in the Court of Criminal Appeal inferred that this remark also applied to the other prisoner, Phillips. In other words, R v Phillips; R v Simpson was a case in which the sentencing judge did quantify the discount he was allowing for the pleas of guilty, by saying that he was allowing a maximum discount. 22 The principal submission made by the Crown in the present application was that it could be inferred from the moderate length of the sentences imposed by his Honour that his Honour had in fact taken into account the utilitarian value of the pleas of guilty and had allowed a significant discount for them. 23 It is clear that it would have been desirable for his Honour to have quantified the discount he was allowing for the utilitarian value of the pleas of guilty. However, his Honour was clearly mindful of the pleas of guilty and that they had been entered, according to his finding, at the earliest available opportunity and I have concluded that, having regard to the objective seriousness of the offences and the offences to be taken into account, the finding that the applicant was carrying on a business of drug dealing, the important circumstance of aggravation that offences three and four were committed while the applicant was on bail for the first two offences and that they were offences of a similar sort committed at the same place as the first two offences, the further circumstance of aggravation not expressed adverted to by his Honour in his remarks on sentence that the applicant was on a recognisance when he committed all of the offences and the absence of any favourable subjective circumstances, the sentences imposed by his Honour by their leniency do disclose that his Honour in fact allowed a significant discount for the pleas of guilty. I would reject the first ground of appeal. 24 (2) the sentencing judge erred in failing to demonstrably take into account the applicant's pre-sentence custody from 16 October 2001 to 11 December 2001. 25 As I have previously indicated, the applicant was in custody from 16 October 2001 to 11 December 2001, a period of one month twenty six days, which was exclusively referrable to the first and second offences. The applicant was in custody again from 17 January 2002 to the date of sentencing. The sentencing judge clearly allowed for the second period of custody, by making the sentences he passed for the first and second offences commence from 18 January 2002. 26 It was conceded by counsel for the applicant that in his remarks on sentence his Honour had said at p 4: "I have taken into account in proposing the sentence which I propose a short term of imprisonment before he was released on bail on 11 December of last year being a period of approximately two months". 27 However, it was submitted that, notwithstanding what the sentencing judge had said in his remarks on sentence about taking the first period of custody into account, the sentences he had imposed did not demonstrate that he had in fact taken into account the first period of custody. 28 Counsel for the applicant referred to s 24(1)(a) of the Crimes (Sentencing Procedure) Act, which provides that in sentencing an offender a Court must take into account the time for which the offender has been held in custody in relation to the offence. Reference was also made by counsel to s 47(2)(a) of the Crimes (Sentencing Procedure) Act, under which a Court may direct that a sentence of imprisonment be taken to have commenced on a day before the day on which the sentence is imposed, and to s 47(3), which provides that in deciding whether or not to make a direction under s 47(2)(a) the Court must take into account any time for which the offender has been held in custody for the offence. 29 Counsel for the applicant referred to a decision of a three judge bench of this Court in R v Howard (2001) NSWCCA 309. In R v Howard the applicant before being sentenced had been in custody for two discrete periods of ten days and one month five days. In his remarks on sentence the sentencing judge expressly stated that he had taken into account the second period of one month five days but made no mention of the first period of ten days. 30 Wood CJ at CL, with whom the other members of the Court agreed, said at para 24 of his judgment: "In this regard it was the case that the applicant had spent ten days in custody between the time of his arrest, on 30 January 1997, and the date when he was granted bail on 10 February 1997, and a further period of one month and five days in custody between 10 May and 15 June 1998, totalling in all one month and fifteen days. His Honour made no mention of the first period of ten days, but expressly stated that he had taken into account the second period of one month and five days. It is, however, submitted that the sentence being expressed in round terms of seven years six months with a non parole period of five years six months, it did not demonstrate any such allowance, since one might reasonably have expected that it would either have been backdated, as is permissible: MacDonald NSWCCA 12 December 1995 and S47(2) Crimes (Sentencing Procedure) Act , or to have been reduced at the other end". 31 His Honour proceeded to say in para 25:- "It is not clear why the two periods of pre sentence custody were not demonstrably reflected in the sentencing order. In my view, error did occur in this respect, having regard to the provisions of S24 as well as S47(2) and (3) of the Act, and to the principles and practice discussed in McHugh (1985) 1 NSWLR 588; Deeble NSWCCA 19 September 1991, and English (2000) NSWCCA 245. Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the Court should intervene to adjust them accordingly". 32 Wooc CJ at CL proceeded to hold that the appeal should be allowed, to the extent of backdating the commencement of the sentence by one month fifteen days, that is for the total of the two periods of presentence custody. 33 In R v McHugh, one of the cases referred to by the Chief Judge at Common Law in Howard, Street CJ said at p 590 to 591:- "It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order". 34 In R v Phillips; R v Simpson, the decision of the Court of Criminal Appeal to which I have already referred, a further ground of appeal was that the sentencing judge had erred in failing demonstrably to take into account the applicant Simpson's pre-sentence custody. In his remarks on sentence the sentencing judge said that he had taken into account the period of pre-sentence custody Simpson had served. However, the sentence imposed by the sentencing judge commenced from the date on which the judge made his sentencing order and the sentence imposed was in round figures of four years. At para 61 of his judgment Carruthers AJ, with whose judgment Greg James J concurred, said:- "I would respectfully agree with the submission of Mr Dhanji, counsel for Ms Simpson, that the approach recommended in McHugh and followed in Howard should be adopted by this Court in the instant case. One significant reason is that it would make clear to the applicant, Ms Simpson, that a specific identifiable allowance was made for the thirty three days in question". 35 It was submitted by the Crown Prosecutor before this Court that the sentencing judge had expressly adverted to the period of pre-sentence custody in his remarks on sentence; that, while there is a legislative requirement that a sentencing judge must take into account a period of pre-sentence custody referrable to the offence, there is no legislative requirement that the sentencing judge take a period of pre-sentence custody into account by backdating the commencement of the sentence; that the Chief Judge at Common Law in his judgment in Howard had left open the option of taking a period of pre-sentence custody into account by "reducing the sentence from the other end", that is by imposing a shorter sentence which would expire earlier; and that in the present case it could be inferred, from what was submitted to be the leniency of the sentences imposed, that the sentencing judge had adjusted downwards the sentences he would otherwise have imposed so as to take account of the applicant's first period of pre-sentence custody. 36 In my opinion, the second ground of appeal should be allowed. It is true that, while a sentencing judge is required to take a period of pre-sentence custody into account, it is not obligatory for the sentencing judge to take the period of pre-sentence custody into account by the means of backdating the commencement of the sentence and that in Howard the Chief Judge at Common Law left open the option of reducing a sentence to be imposed so as to take into account a period of pre-sentence custody. However, in the present case, I consider that, notwithstanding the sentencing judge's assertion in his remarks on sentence that he had taken into account the first period of presentence custody, the first period of presentence custody is not demonstrably reflected in the sentences which were imposed. The first two sentences, on which the other two sentences depend, were made to commence from 18 January 2002, a commencement date which would allow only for the second period of pre-sentence custody. The sentences which were imposed were for round periods of whole years, which tends to militate against any conclusion that an irregular period of one month and twenty six days was really taken into account. 37 Although I have concluded that it can be inferred from the leniency of the sentences imposed that his Honour allowed a significant discount for the pleas of guilty, I am not satisfied that it can be inferred from the length of the sentences imposed that his Honour in fact made a further allowance for the first period of pre-sentence custody of one month and twenty six days. 38 In my opinion, leave to appeal should be granted and the appeal against the sentences imposed by Shillington AJ should be allowed. I do not consider that the appeal should be dismissed on the ground that no lesser sentences would be warranted in law. It is accordingly necessary to re-sentence the applicant. 39 I have referred to the objective facts of the offences and the subjective circumstances of the applicant. In re-sentencing the applicant I take into account some evidence tendered on the hearing of this application about the applicant's conduct while he has been in custody. I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. For the same reasons as were given by his Honour in his remarks on sentence I would find special circumstances. I have concluded in the exercise of my own sentencing discretion that the sentences imposed by his Honour were sentences of a length appropriate to impose, apart from the failure demonstrably to take into account the first period of pre-sentence custody. In re-sentencing the applicant, I would adopt the same pattern of sentencing as his Honour did. I would make the sentences for the first two offences commence from 23 November 2001, so as demonstrably to take into account the first period of pre-sentence custody. 40 I would propose the following orders: leave to appeal granted, appeal against sentences allowed; sentences imposed by Shillington AJ on 29 August 2002 quashed and in lieu thereof the following sentences should be imposed. For the offence charged in the first count a fixed term of imprisonment of one year commencing on 23 November 2001; for the offence charged in the second count a fixed term of imprisonment of one year commencing on 23 November 2001; for the offence charged in the third count a term of imprisonment of three years with a non-parole period of one year commencing on 23 November 2002; for the offence charged in the fourth count a fixed term of imprisonment of one year commencing on 23 November 2002. I further propose that an order be made directing the release of the applicant on parole on 23 November 2003. 41 SMART AJ: I agree. 42 JAMES J: The orders of the Court will be the orders proposed by me.

R v Galati

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