R v Kitchener

He said that May, on each occasion, drove the car in which the applicant was transported but his Honour accepted that May knew little about the supply of the drug (although he did know that what he was doing was illegal) and that his involvement was limited. He noted May's age - twenty-two years at the time of the offences - and that he had no relevant criminal record. He said that May was not a member of the motorcycle club but was "a nominee". This meant that he was required to assist the club members, and O'Reilly DCJ inferred that the applicant took advantage of May's inferior position in the organisation to recruit him into the transactions. He said that May had severed contact with the club, had a nine month old daughter whose mother he assisted financially and that he also assisted his widowed mother. May's mother gave evidence that May was ashamed of his involvement in the offence and his conviction. It is plain that O'Reilly DCJ had real confidence in the evidence pointing to May's rehabilitation. He concluded that it would be "utterly counterproductive" to impose a term of full-time custody upon him. 22 The various circumstances alluded to by O'Reilly DCJ make it plain that, even though May was a co-offender, the circumstances of the two offenders were so disparate as not only to warrant, but positively to demand, different sentences. The applicant was, at the time of the offences, twenty-five years older than May; he was the president of the motorcycle club that May aspired to join; he had a lengthy record of criminal offences, including one previous drug offence; he was on parole at the time of the commission of the offences; and, on no view of the material placed before Gibson DCJ, could any reasonable confidence be had in his rehabilitation. 23 I would reject the argument that any question of proportionality arises between May and the applicant. 24 Indeed, counsel who appeared for the applicant on the application recognised that "no direct parity" arose and directed his arguments to "proportionality". 25 The next matters raised under this "proportionality" ground concerned sentences imposed on 18 October 2002 by Finnane DCJ on Ivan Tesic and David Anthony Snow. Snow pleaded guilty to four charges, these being of knowingly taking part in the manufacture of not less than the commercial quantity of methylamphetamine and the second of supplying the same quantity of that drug, both offences having been committed over a period in the first half of 2000. The third and fourth counts were of assaulting police officers in the execution of their duty. There were also some offences taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 but the nature of these does not clearly emerge from the remarks on sentence. The counts of assaulting police officers were particularly serious instances of their kind, such as to lead the sentencing judge to the view that they called for the imposition of the maximum penalty available, although he reduced that by reason of the offender's pleas of guilty. 26 All that links these offenders and their offences with the applicant and his offences, is their membership of the same motorcycle club. In the written submissions filed on behalf of the applicant it was asserted that Snow and Tesic were the manufacturers "of the drug", presumably meaning the drug which the applicant supplied to the undercover operative. No issue was taken with this assertion although there is no direct evidence to support it. It is on this basis that they are put forward as persons to whose sentences the sentences imposed upon the applicant should bear reasonable proportionality. 27 On each of the drug charges against Snow Finnane DCJ sentenced him to imprisonment for six years with a non-parole period of three years, the sentences to be served concurrently, commencing 2 May 2000. On the assault counts Finnane DCJ sentenced Snow to imprisonment for three years and nine months with a non-parole period of one year, to commence on 1 May 2002. 28 The effective head sentence imposed upon Snow was thus imprisonment for six years with an overall non-parole period of three years. 29 Snow was about thirty-five years of age at the time of the offences and had a rather serious criminal history, including what was described by the sentencing judge as "various sentences imposed upon him" for supplying prohibited drugs. He had abused leniency when it was afforded to him. However, Finnane DCJ accepted that, at thirty-seven years of age (at the time of sentence) that there was some basis for confidence in his rehabilitation. 30 Tesic was a co-offender of Snow, charged with one count of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine and another of knowingly taking part in the supply of not less than the commercial quantity of the same drug. Two further counts of the same kind but excluding the circumstance that not less than a commercial quantity was involved were taken into account pursuant to the Crimes (Sentencing Procedure) Act. Tesic was sentenced to an overall head sentence of six years and nine months with a non-parole period of three years. 31 Tesic was about twenty-seven years of age at the time of the offences and had a criminal record, although it appears to have been not as serious as that of Snow. Again, Finnane DCJ appeared to accept the evidence of rehabilitation. 32 I will return to the question of proportionality so far as it involves the sentences imposed upon Snow and Tesic. 33 The final matter raised under this ground of appeal concerned a sentence imposed on John Edward Parkinson who was initially sentenced in the District Court on 2 February 2001 on three counts of supplying methylamphetamine, one of supplying not less than the commercial quantity of the drug, one of knowingly taking part in the manufacture of amphetamines, and sale of an unregistered firearm. A further seven matters, involving three instances of supplying amphetamines, one of supplying a firearm, goods in custody ($2,000 in cash), possession of a small amount of cannabis and possession of a semi-automatic pistol were taken into account pursuant to the Crimes (Sentencing Procedure) Act. An application for leave to appeal was successful: see R v Parkinson [2001] NSWCCA 244, unreported, 27 June 2001 (revised 1 July 2001). 34 The reason Parkinson is said to be relevant on the issue of proportionality is to be found in an exchange between counsel for the Crown, counsel for the applicant, and Gibson DCJ during the applicant's sentencing proceedings. The Crown Prosecutor provided to the judge, as part of Crown material, a copy of the judgment in Parkinson's case, who she then described as a co-offender. Counsel for the applicant took issue with that description to which the Crown Prosecutor replied: "Your Honour, they're not co-offenders strictly speaking in the sense of embarking on the same criminal enterprise at the same time, however there were parallel situations your Honour, where two police undercover operatives were purchasing drugs - "

Gibson DCJ asked if the Crown's contention was that the sentence that was passed on Parkinson was one: "that may show some of the parameters of the sentence to be passed on Kitchener …" 35 The Crown Prosecutor replied: "Well it may, your Honour. … Your Honour, it is my submission that it is not an appropriate case for parity but it may be a question that the court wishes to turn its mind to given that these were parallel drug selling operations of the same time, the same club, two different police operatives." 36 In the first instance Parkinson was sentenced to a total term of imprisonment for six years and two months with an effective non-parole period of five years and seven months. 37 Parkinson sought leave to appeal against his sentences to this court. The application was heard by a bench constituted by Barr and Howie JJ. Howie J, with whom Barr J agreed, held that there were errors in the sentences imposed. Parkinson had been allowed a discount on his sentence in respect of his pleas of guilty of only five per cent. The court held this to be erroneous. The court also held that there were errors in the manner in which the sentencing judge determined and structured the sentences. It is unnecessary to detail those errors. 38 Because of the errors identified this court set aside the sentences imposed and proceeded to re-sentence. The court plainly did so reluctantly because it considered that rectification of the errors it identified would require the imposition of longer sentences than had been imposed and this was, at least, inappropriate. Howie J noted that the total sentence he proposed on appeal was "unduly lenient and verging on the inadequate". That result came about in order to demonstrate that Parkinson had received some benefit from his pleas and to encourage him to work for parole to assist him on his release. 39 The sentences imposed by this court were an effective head sentence of six years and two months, commencing 17 March 2000 and expiring on 15 May 2006, with a non-parole period of four years and two months, expiring on 15 November 2004. This amounted to a reduction of the non-parole period but no real interference with the head sentence. 40 It is only if the applicant can show that any of the offenders mentioned, that is Snow, Tesic or Parkinson, are truly comparable and these offences related to his in the sense that he could justifiably experience a sense of grievance if sentenced more harshly than they, that he can succeed on this ground of the application. As I have indicated, he does not contend that any of those offenders is a co-offender. In recounting the facts in the decision in Parkinson, Howie J noted that Parkinson was a member of the Life and Death Motor Cycle Club and engaged in the supply of amphetamines. The period over which he was engaged in the offences began in October 1999 and ended on 17 March 2000, thus encompassing the dates of the applicant's two offences. However, there is no evidence that Parkinson was the source of the applicant's supply of the drug and the most that could be said was that Parkinson's involvement was "a parallel operation" to that in which the applicant was engaged. Even less is it shown that Snow or Tesic were co-offenders of the applicant. 41 The consequence, in my opinion, is that the relevance of those sentences is no more and no less than that of other sentences imposed in relation to offenders in comparable cases. They do not and cannot dictate the sentences that should have been imposed on the applicant. 42 That, in my opinion, is sufficient to dispose of this ground of the application. However, there is an additional reason why those sentences should not be seen to govern the sentence to be imposed upon the applicant. 43 I have already mentioned the applicant's previous conviction for an offence involving the supply of amphetamines. He was arrested and charged with that offence on 1 November 1989. He pleaded guilty in the District Court and was sentenced on 22 March 1991. The sentence imposed was imprisonment for a minimum term of five years with an additional term of one year. The minimum term was specified to commence on 6 August 1994. That was because, prior to the imposition of that sentence, the applicant had been sentenced by another District Court judge following his conviction of a series of sexual offences. The minimum term imposed at first instance in relation to the sex offences expired on 6 August 1994. The applicant appealed to this court, both against his conviction in respect of the sexual offences (which appeal was dismissed) and against the sentences imposed in respect of the sexual offences and the sentence imposed in respect of the drug offence. On 8 April 1993 this court (Kirby P, Carruthers and Smart JJ) granted leave to appeal against the sentences and allowed the appeal. The court reduced the minimum term imposed in relation to the sex offences by one year, thus advancing the expiry date to 6 August 1993. It therefore became necessary to alter the commencement date of the sentence imposed in relation to the drug offence so that it commenced at the expiration of that minimum term; the court imposed an additional term of two years. Thus the applicant was sentenced on the previous drug offence to a minimum term of five years and an additional term of two years. 44 I have already alluded to the need, in sentencing the applicant on the present offences, to incorporate a significant component by way of personal deterrence. A sentence with a minimum term of five years with an additional term of two years imposed by the court in 1993 was inadequate to deter the applicant from engaging in precisely the same criminality on a second occasion. To impose sentences of the kind imposed on Snow, Tesic or Parkinson would fail to recognise this important aspect of the sentencing decision. It would also fail to recognise that these offences were committed whilst the applicant was on parole, something which does not appear to be the case in relation to any of the other named offenders. 45 I would reject this ground of the application.

ground three: "double punishment" 46 Before considering the merits of this ground, it is necessary to recount, so far as is relevant, the applicant's custodial history. The sexual offences referred to above were committed on 12 January 1988. It is not clear when the applicant was arrested in relation to these offences, but he was subsequently granted bail. He was rearrested on 1 November 1989 and charged with the earlier amphetamine offence. He remained continuously in custody until 6 August 1998 when he was released on parole. One of the conditions of the parole order was that he not associate with any member of the Life and Death Motor Cycle Club. For reasons which do not clearly appear, parole was revoked and the applicant returned to custody on 5 June 1999. Gibson DCJ was told by counsel who appeared for the applicant on sentencing that the reason for that revocation was that the applicant had attended a twenty-fifth anniversary celebration, presumably of the Life and Death Motor Cycle Club. A further parole order was made on 2 July 1999 and the applicant released from custody on 7 July 1999. This parole order was subject to a condition that the applicant resign from the Life and Death Motor Cycle Club and take no part in its activities. The applicant was then arrested on 17 March 2000 on the present offences. 47 By Order dated 11 April 2000 the parole order of 2 July 1999 was revoked with effect from 6 March 2000. The reason given for the revocation was breach of two identified conditions of parole, stated as: "… breach of conditions 3(c) - unable to adapt to normal lawful community life and 10 - not to associate or attend activities with the Life and Death Motor Cycle Club." 48 The Parole Board ordered that the applicant serve the balance of parole of one year, ten months and four days, to expire on 8 April 2001. Thereafter he remained in custody until he was sentenced in relation to the present offences. (There is considerable confusion, and inconsistency, in various documents which refer to the dates of the applicant's parole. It is not possible, and presumably not necessary, to reach a final conclusion about which are correct. Where there are discrepancies those discrepancies should be reconciled in favour of the applicant.) 49 The sentencing judge twice noted that the applicant's offences were committed whilst on parole and plainly (and correctly) treated these as a significant aggravating feature. 50 It was submitted that the sentencing judge erred in failing to take into account that, in doing so, the sentence incorporated an element of double punishment. Reference was made to the decision of this court in R v Kaiva, unreported, 9 November 1998, per Kirby J (with whom I agreed). In this case Kirby J said: "Secondly, his Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate. The sentence which he then passed reflected that circumstance. Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is also undesirable." 51 As is apparent from the paragraph extracted, in Kaiva, the offender had committed an offence whilst on parole. At the time of sentencing parole had not been revoked. The sentencing judge took into account, as an aggravating feature, the fact that the offence was committed whilst on parole and, for the same reason, declined to backdate the sentence so that it commenced on the date the offender was taken into custody. It was that that Kirby J, with my concurrence, considered to be an error. 52 Here, the circumstances are a little different. The applicant was arrested on 17 March 2000. His parole was revoked, effective from 6 March 2000. The parole period expired on 8 April 2001. The applicant was not sentenced on the present offences until 12 October 2001. The sentences were expressed to commence on 2 April 2001, a date which excluded almost all of the parole period referable to the previous sentences. 53 S47 of the Crimes (Sentencing Procedure) Act is in the following terms: "47. Commencement of sentence

(1) A sentence of imprisonment commences: (a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence.

(2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.

(4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject.

(5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence.

(6) A sentence of imprisonment starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." 54 The effect of sub-s (4) is that, while a sentencing court may post-date the commencement of a sentence which it requires to be served consecutively or partly consecutively upon some other sentence, it may only post-date to the end of the non-parole period imposed in relation to that other sentence. Thus, if the applicant had been sentenced before the expiration of the non-parole period, it would have been obligatory for the sentence to commence not later than the date of its imposition. That is because the non-parole period had long since expired and the term of the sentence the applicant was then serving was the parole period. The sentence may, however, have been back-dated and specified to have commenced at some earlier time. It may be assumed that Gibson DCJ did not intend effectively to reduce the sentence he imposed by backdating it, but if the applicant had earlier been sentenced he would automatically have been entitled to some reduction in the effective sentence by reason of its commencement date. There would have been some overlap of the parole period referable to the earlier offence and the sentence imposed by Gibson DCJ. Of course, if that had been the case, Gibson DCJ may have considered the imposition of an even longer sentence, but there is no reason to think that he would in fact have done so. 55 It is of some significance that, in Kaiva, the revocation of parole was attributable solely to the commission of the offence for which the offender was being sentenced. That is not here the case. The applicant's parole was revoked, partly for that reason, but partly because of his breach of the condition concerning his association with the motorcycle club. There was evidence of the applicant's continued association with the club, quite apart from the commission of these offences. It is also of significance that this was the reason for the earlier revocation of parole. Just what would have occurred had the applicant not been arrested in relation to the present offences is a matter of pure speculation. He may or may not have been granted parole in that almost two-year period. 56 Although I have grave reservations about the appropriateness or desirability of attempting the hypothetical exercise of deciding what the applicant's parole position would have been had the parole been revoked only as a result of his breach of the condition concerning the motorcycle club, and not by reason of the commission of these offences, I have concluded that that exercise must be undertaken. If it is the case that the revocation, or continued revocation, of parole is properly seen as attributable to the commission of these offences, and the fact that they were committed on parole is taken into account as an aggravating feature, then, it seems to me, the principles stated in Kaiva apply and the applicant would be entitled to perceive that there is an element of double punishment. If, on the other hand, the revocation or continued revocation of parole could be seen as solely or principally attributable to the breach of the non-association condition, then there could be no complaint about the commencement date of the sentence. 57 This then reintroduces the evidence concerning the applicant's exemplary conduct whilst in custody. I cannot escape the conclusion that, had the revocation occurred only by reason of association with the motorcycle club, then the applicant could reasonably have expected, within a relatively short time, to be released on parole. (Whether he would yet again have breached that condition is even more speculative, but the indications are not good.) 58 Having reached that factual conclusion, it seems to me that the applicant's complaint is justified and that there is some element of double counting in the sentences. He was required to serve out his parole period, in fact because of the commission of these offences; as well, his sentences were extended (by how much cannot be known) because the offences were committed whilst he was on parole. In my opinion, this ground is made good. It will be necessary to adjust the commencement date of the sentences.

ground four 59 My conclusion in relation to ground three makes it unnecessary to consider the matters raised in respect of ground four.

ground one: sentences manifestly excessive 60 In my opinion this ground should be rejected. It is unnecessary to say much more than has already been said. The applicant's history and his repeated offending gave him no legitimate expectation of a lenient sentence, and, as I have remarked in relation to ground two, elements of specific deterrence were of more than usual importance. I would reject ground one. 61 Since, having regard to my conclusions in relation to ground three, I am of the view that it is necessary to re-sentence, I have had regard to additional evidence provided for that purpose. It shows that the applicant has conformed to his usual pattern and behaved impeccably whist in custody, securing the affection and support of his supervisors. In the light of the applicant's history, I cannot read that as indicative of rehabilitation. 62 The evidence also confirms the diagnosis of his wife's heart condition, but this is not of such as nature as to warrant its being taken into account on the question of sentencing. 63 The final question concerns the appropriate commencement point. That really involves fixing a notional date on which the applicant might have anticipated a second release on parole. His initial release was on 6 August 1998 and he was returned to custody on 5 June 1999. He was again released on 7 July 1999, what seems to me to be a relatively short period of re-incarceration following a breach of the condition. He could have expected, one would think, a lengthier period of incarceration before he could have hoped for a further release on parole. I would suggest that he may have expected release on parole by the beginning of 2001. Accordingly, I propose that the sentences be specified to commence on 1 January 2001. I propose the following orders:

(ii) the appeals be allowed, the sentences quashed;

(iii) in lieu thereof the applicant be sentenced as follows: Count one - imprisonment for a fixed term of four years and six months to commence from 1 January 2001 and expire on 30 June 2005;

Count two - imprisonment for eight years to commence from 1 January 2001 and expire on 31 December 2008; non-parole period of six years to expire on 31 December 2006.

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