R v Smith [2006] VSCA 23

2 This is an appeal against the total effective sentence of three years and seven months' imprisonment, with a non-parole period of two years and two months, that was imposed on the appellant by a County Court judge on 17 June 2005, in respect of four counts on a presentment to which he pleaded guilty, namely:

Count 1: Assaulting a member of the police force in the due execution of duty.

Count 2: Escaping from legal custody.

Count 3: Being a prohibited person, possessing, carrying or using an unregistered firearm.

Count 5: Trafficking in a drug of dependence.

The maximum custodial penalty for the offences that are the subject of counts 3 and 5 is 15 years.[1]

3 The circumstances giving rise to the offences alleged in counts 1 to 3 arose on 16 September 2004 when, at approximately 12.10a.m., the vehicle in which the appellant was a passenger was intercepted by a police officer on the Hume Highway near Glenrowan. It seems that the police were in possession of information indicating that the appellant was armed with a handgun and might be in possession of drugs. When the police officers sought to search a small bag that was tied around the appellant's waist, and after he was told that he was under arrest, the appellant pushed the police officer in the chest, forcing him to stumble backwards (count 1). He then ran into the darkness (count 2). Later that day, the police searched the vicinity and located a semi-automatic .22 calibre pistol that had no ammunition and no magazine. The weapon was not registered in Victoria and, on testing, was found to be in working order (count 3). Two days later, on 18 September 2004, the appellant was arrested in a Melbourne suburb. When the police attended his premises they located there, amongst other things, a set of scales and 125 grams of white powder, which was analysed and found to be 30 per cent pure amphetamine. The appellant later admitted that he planned to take the drugs to Queensland for sale (count 5).

4 At the time of his arrest, the appellant was on parole in respect of his conviction for murder on 1 June 1987 for which he was sentenced to 18 years' imprisonment with a non-parole period of 13 years. The appellant has a bad criminal history going back to 1984, including convictions for dishonesty, resisting arrest, assaulting a police officer, escaping from custody, being in possession of firearms unlawfully, burglary, theft and motor car offences.

5 In 2002, the appellant was shot a number of times and spent some days in hospital. His Honour accepted that, as a result of that shooting and the death of a close friend in May 2004, the appellant suffered a high level of paranoia and belief that his life was at risk, either from other criminals or from police officers. The learned judge also accepted that at the time the appellant committed the offences in question he was disturbed, upset and out of the pattern into which he had settled in Queensland, primarily because a close friend on whom he had become reliant had died. The other mitigating circumstances to which the learned sentencing judge made particular reference when sentencing the appellant included his plea of guilty, his psychological background and, in particular, his depression at the relevant time and strong family support.

6 I have already mentioned that the appellant was remanded in custody on the above charges on 18 September 2004. On 6 October 2004, his parole period in respect of his previous conviction for murder was revoked by the Adult Parole Board. Section 18(1) of the Sentencing Act 1991 relevantly provides that, in sentencing an offender for a term of imprisonment in respect of an offence, any period of time during which he or she is held in relation to a proceeding for that offence must be reckoned as a period of imprisonment served under the sentence.

7 At the hearing of the plea in mitigation, the appellant's counsel submitted to his Honour that the period spent by the appellant by way of time owed to the Parole Board - approximately nine months between 6 October 2004 and 17 June 2005 - was "dead time" and was relevant to the determination of the non-parole period, but not the head sentence. It seems plain enough that the learned sentencing judge accepted that submission and sentenced the appellant accordingly, namely, by taking into account the "dead time" in determining only the non-parole period. In the result, the following sentences of imprisonment were imposed:

Count 1 - 14 days.

Count 2 - 1 month.

Count 3 - 3 years.

Count 5 - 6 months.

His Honour ordered that the sentence on count 1 be served concurrently with the sentence imposed upon count 2 and that the sentences on counts 3 and 5 be served cumulatively upon the sentence imposed on count 2 and upon each other, thereby imposing a total effective sentence of three years and seven months' imprisonment with a non-parole period of two years and two months. His Honour also declared that 19 days of the sentence had been served.

8 It is plain enough that the "dead time" was not to be taken into account as pre-sentence detention for the purposes of s.18(1) of the Sentencing Act, as it was not "served" by the appellant in relation to the present offence. But it is also clear that the time spent in custody prior to his being sentenced for the offences in question, and following the revocation of his parole, although not falling within s.18(1), is nevertheless to be taken into account in the exercise of the court's sentencing discretion.[2] Thus, in telling his Honour that the "dead time" was relevant only to the determination of the non-parole period, counsel misstated the position in that regard and, more importantly for present purposes, his Honour acted on that mistaken premise. So much was common ground between the parties before us.

9 Ms Cannon for the Crown contended that, since his Honour took the relevant period into account for the purpose of fixing the non-parole period, any non-parole period on re-sentencing should remain the same as that fixed by his Honour. Mr Grace, for the appellant, on the other hand argued that the error effected both the head sentence and the non-parole period and consequently, in re-sentencing the appellant, both periods should receive appropriate consideration by this Court.[3] In my view, however, the non-parole period as well as the head sentence should be set aside for at least two reasons. First, this Court in Renzella[4] and Stares[5] considered that the pre-sentence detention, although not giving rise to the making of a formal declaration under s.18(1) of the Sentencing Act, nevertheless must be taken into account as a matter of justice in determining the total effective sentence and the non-parole period. Secondly, the non-parole period is the minimum time that the sentencing judge determines that justice requires the offender to serve, having regard to all the circumstances of the case, and one of the "circumstances" is, I think, the length of "dead time" served by the offender prior to sentence. In any event, any change in the period of the head sentence will plainly effect that of the non-parole period. Thus, I consider that, in the circumstances, the Court should set aside his Honour's sentencing orders and re-sentence the appellant.

10 In determining the appropriate total effective sentence and the non-parole period, I have taken into account, amongst other matters that are relevant, the "dead time" served by the appellant, the provisions of s.16(3B) of the Sentencing Act (having noted that it was not claimed that "exceptional circumstances" existed here for the purposes of that section), the circumstances of the offending and of the appellant to which I have referred, and to the principles of specific and general deterrence, as well as the fact that the offence that is the subject of count 3 is considered by this Court as a very serious offence.[6] I also have regard to the fact that, as Mr Grace pointed out, the appellant's medical file shows that, since sentence, he has been diagnosed with increasing dementia. In that context I also have regard to the report of Dr Kennedy of 16 June 2005, to which Ms Cannon referred in support of the claim that the impairment of the appellant's cognitive function was known at the time of sentence, although it is quite clear from the material to which Mr Grace referred that it has since deteriorated.

11 In the circumstances, I would re-sentence the appellant to the following terms of imprisonment:

1 count 1: 14 days;

count 2: one month;

count 3: three years;

count 5: six months.

I would order that three months of the sentence imposed on count 5 be served cumulatively on the sentence imposed on count 3, thereby making a total effective sentence of three years and three months' imprisonment. I would fix, in the circumstances, 18 months as the non-parole period.

[1] On 25 November 2005, this Court granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958.

[2] See, for example, R. v. Renzella [1997] 2 V.R. 88 at 98 per Winneke, P., with whom Charles and Callaway, JJ.A. agreed and R. v. Stares (2000) 4 V.R. 314 at 323 per Charles, J.A., with whom Phillips, C.J. and Chernov, J.A. agreed.

[3] I note that, in terms, it was not contended for the appellant that the individual sentences were infected by that, or any other, error.

[4] At 97, 98.

[5] At 321, 323 and 325.

[6] See Director of Public Prosecutions v. Faure (2005) 153 A.Crim.R. 316.

At a glance

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Judgment (11 paragraphs)

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