Regina v Shankley

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0105 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60489/02

GREG JAMES J HOWIE J SMART AJ

THURSDAY 11 SEPTEMBER 2003 REGINA v Glen William SHANKLEY Judgment 1 GREG JAMES J: I agree. 2 Howie J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act. On 2 August 2002 the respondent pleaded guilty before Judge Coolahan to an indictment containing two counts: the first, an offence of supplying not less than a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drugs Misuse and Trafficking Act and, the second, an offence of possession of a firearm without being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act. The offence in the first count carried a maximum penalty of 5000 penalty units or imprisonment for life or both, s 33(3)(a) of the Drug Misuse and Trafficking Act. The offence in the second count carried a maximum penalty of 14 years imprisonment. 3 In respect of the first count the respondent asked the sentencing judge to take into account ten matters on a Form 1, the most serious of which was a charge of supplying not less than a commercial quantity of methadone. The respondent also asked his Honour to take into account three matters on a Form 1 when sentencing him on the second count. These were charges alleging further breaches of the Firearms Act. 4 The respondent had been committed for trial on the matters for which he was to be sentenced and was to stand trial on the Monday when he pleaded guilty before Judge Coolahan. A Notice of Motion had been filed on his behalf seeking separate trials in respect of the two offences on the indictment. That Motion was for hearing on the morning of the trial. However, the respondent's legal representatives advised the Crown on the Friday before the trial date that the respondent would plead guilty to the two offences, enabling the Crown to cancel its witnesses. 5 On 10 September 2002 Judge Coolahan sentenced the respondent on the first count, taking into account the matters on the Form 1, to imprisonment for 7 years to commence on 9 December 2001 and fixed a non-parole period of 5 years 3 months which would expire on 8 March 2007. In respect of the second count and taking into account the matters on the Form 1 the respondent was sentenced to imprisonment for 4 years to commence on 9 March 2006 with a non-parole period of 3 years which would expire on 8 March 2009. The effective sentence imposed for all of the criminality before his Honour was, therefore, a head sentence of 8 years and 3 months with a non-parole period of 7 years and 3 months. The commencing date was chosen to take into account the pre-sentence custody served by the respondent. 6 The Crown asserts that the sentences imposed were manifestly inadequate and ascribes to the learned sentencing judge a number of what are alleged to be patent and latent errors which, it contends, may account for the inadequacy of the sentence imposed. These are: (a) his Honour was mistaken as to the maximum penalty for the offence in the first count; (b) the sentence imposed for the first count failed to reflect the offences on the Form 1; (c) his Honour was in error in his understanding of the respondent's criminal record and the effect of it; (d) the discount given for the plea of guilty was excessive. 7 Mr Doyle, who appears for the respondent has argued that the Court should not entertain the appeal because of the delay in both the lodging of the appeal and the matter being brought on for hearing. He contends that the delay is excessive and unjustified. He has referred to a number of decisions of this Court where the consequence of delay by the Crown in lodging an appeal has been considered. It is unnecessary to refer to these cases in detail because it is clear that the Court has a discretion to dismiss an appeal under s 5D where there has been unjustified delay in commencing the appeal and that delay has resulted in prejudice or injustice to the respondent. The most recent consideration of the discretion was in R v Y [2002] NSWCCA 191 and see R v Hallocoglu (1992) 29 NSWLR 67 and Pham and Lye (1991) 55 A Crim R 128. It is conceded by Mr Doyle that, in considering whether to dismiss the appeal because of delay, the Court must take into account the nature and seriousness of the offence to which the appeal relates. 8 In the present case the notice of appeal is dated 15 November 2002 and was filed on 18 November 2002; that is a little more than 9 weeks after the sentence was imposed. Delays of this order have enlivened a consideration of the Court's discretion to dismiss the appeal in the past. There is evidence that a letter dated 1 October 2002 was sent to the respondent by the Crown notifying him that consideration was being given to the lodging of an appeal. It appears that the respondent has acknowledged receiving this letter on that date. While such notification is not a complete answer to excessive and unjustified delay, it may mitigate the prejudice suffered by the respondent in that he is at least made aware, at a time relatively shortly after the sentence was imposed, that the sentence may be challenged by the Crown. Such a letter may have raised uncertainty in the respondent's mind as to what would be the final outcome of the proceedings following his pleas of guilty but at least he was not left long in the belief, if he had one, that the sentence he received would be the sentence he was to serve. 9 Mr Doyle also relies upon the delay in the matter being heard by the Court. The fact that almost 12 months has elapsed from the date sentence was passed is a clearly relevant matter to be considered in the exercise of the Court's discretion to intervene even if the Crown's challenge to the sentence is made good. But, generally speaking, it would be a rare and unusual case where that type of delay would result in the refusal of the Court to entertain the appeal where the Crown was not responsible for the delay in the hearing of the matter. 10 In the present case the evidence discloses that on 18 November 2002 the respondent was advised by the Crown that the appeal had been lodged and that the matter had been listed for mention on 9 December 2002. The appellant was on that day served with the Notice of Appeal. On 4 December the respondent filed a Notice of Intention to Appeal against his conviction and sentence in respect of the two matters subject of this appeal. The Crown was notified of this on 6 December. It seems that thereafter the delay in listing the Crown's appeal was to enable the respondent's Notice of Intention to Appeal to be considered by his legal advisers. Unsurprisingly, no appeal by the respondent was ultimately pursued. 11 The history of the proceedings revealed by the papers placed before the Court indicates that the delay in the matter coming on for hearing was not the fault of the Crown. While it is unfortunate that the matter has been delayed for a lengthy period of time, it seems that this was due substantially to the respondent seeking advice as to whether he could appeal his conviction and sentence. While the delay in lodging the appeal and the hearing of the appeal are matters relevant to the outcome of this appeal they are not, in my view, such that the Court should refuse to consider the appeal on its merits. 12 The facts in the matter can be briefly stated for the purposes of the resolution of this appeal. There is no dispute by the respondent with any factual findings made by the sentencing judge. Although the Crown contends that his Honour made some errors of a factual nature, I do not believe that the outcome of the appeal is to be resolved by a consideration of those matters whether or not they have any merit. 13 The first count alleges that between 8 May 2001 and 18 July 2001 the respondent supplied not less than a large commercial quantity of methylamphetamine. The amount of that type of drug, which comes within this description, is 1 kilogram. As his Honour pointed out in his remarks on sentence, the exact amount of the drug supplied by the respondent over that period cannot be ascertained but was at least this amount. The evidence to support the allegation was substantially found in the transcripts of 405 calls made to, or from, the respondent's mobile telephone. These calls had been lawfully intercepted by the NSW Crime Commission and they evidenced the criminal conduct in which the respondent was engaged at that time. That conduct related to his involvement with different types of prohibited drugs, his unlawful custody of property and the illegal possession of firearms. 14 In evidence before his Honour was "Annexure A" which contained a précis of the transcripts of 45 of those calls as representative of the total conversations intercepted and the transactions in which the respondent was involved as revealed by those conversations. There was also an "Annexure C" which contained a précis of 28 calls containing discussions as to a contemplated supply of $20,000 worth of amphetamine. It is unnecessary to detail the content of these Annexures but his Honour fairly summarised the criminality embraced by Count 1 as follows:

A perusal of Annexure A and the volumes of the telephone intercepts, leads to the inescapable conclusion that during the period involved the offender was, to say the least, intimately familiar with the drug trade, particularly so far as it related to amphetamines and was very actively engaged in that trade for reward. Whilst no exact calculation of the amount of drugs or money has been made nor probably could possibly be made over the period of the telephone intercept, it is conceded that the supply involved more than a large commercial quantity. It is also obvious that during the period of the intercept the offender sold amphetamines not only to users but also to persons who, whether they be users or not, were purchasing the drug for ongoing supply. 15 His Honour also stated,

As I say, the evidence in the Crown case unequivocally demonstrates that for the period of surveillance the offender was intimately involved in the buying and selling of amphetamines in particular, on both a retail and wholesale level, and that he was very much au fait with the way in which such a business operated.

It is clear that during that period he demonstrated a willingness, if not eagerness, to supply drugs as and when required including large quantities if he could obtain them. Whilst the Crown does not allege that the offender was a "Mr Big", the Crown does submit that he was a very active and willing drug dealer for profit. With this submission I can only agree. 16 The Crown also intended to rely at the trial of the respondent upon evidence of a person who had purchased amphetamine from the respondent on effectively a daily basis from the end of December 2000. The witness had been a participant in some of the intercepted conversations. The conduct represented by Count 1 was, therefore, not to be considered as an isolated period of aberrant behaviour on the part of the respondent. 17 Further, at the time of the commission of this offence the respondent was on conditional liberty and subject to a number of bonds imposed in the Local Court for criminality of a similar nature as that which was before his Honour. I shall return to the relevance of this fact and the use made of it by the sentencing judge later in this judgment. 18 The sentence imposed for this offence also had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the offences in the Form 1; Attorney General's Application Under s 37 of the Crimes (Sentencing) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 at 129. In this particular case, in my view, the increase in the sentence otherwise appropriate to reflect the criminality for the first count called for by reason of the matters on the Form 1 was substantial. As I have already indicated, one of the offences was of grave seriousness involving as it did discussions by the respondent as to the best way of supplying a litre of methadone that he had apparently secured by some means or other. "Annexure B" in the evidence before his Honour contained a précis of ten of the intercepted conversations that related to this charge. But the other matters to be taken into account were not insubstantial notwithstanding the seriousness of the two supply offences before the court. They included most notably offences of goods in custody in relation to cash, jewellery, police identification and a police badge and the possession of cannabis leaf, resin and seeds; all of these items being in the possession of the respondent on his person, in his vehicle or within his home. 19 His Honour was erroneously of the view that the maximum penalty prescribed for the offence charged in the first count was 25 years imprisonment. Contrary to the submission made by Mr Doyle, I believe that there is substance in this ground of appeal. In my view, there is real significance in the fact that Parliament has expressed the view that an offence is so serious that it may warrant, in the worst category of case, the most severe sentence that a court can impose; a sentence of life imprisonment. It is a consideration that cannot be ignored by a sentencing court even though there may be no suggestion that the sentence for the actual offence committed by the offender would warrant that penalty. A consideration of the maximum penalty prescribed for an offence is fundamental to a determination of the appropriate sentence to be imposed: Oliver (1980) 7 A Crim R 174. It represents the public's view of the seriousness of the crime: H (1980) 3 A Crim R 53. It is such an important matter that an incorrect statement by a sentencing judge of the applicable maximum penalty may, of itself, call for the intervention of this Court: R v Mason [2000] NSWCCA 82 at [19]. I would not be prepared to act on the view that his Honour's erroneous belief as to the maximum penalty was of no consequence to the sentence imposed: this would be a finding which itself imputed a fundamental error to the sentencing judge. 20 However, I would not be prepared to determine the outcome of this appeal simply on the basis of a misstatement of the maximum penalty applicable to Count 1 in the circumstances of this particular case. This is a Crown appeal and the error could, and should, have been corrected by the Crown so that his Honour could consider the consequence of that error upon the sentence he had determined to impose before he actually imposed it. Further, there is the impact of the sentence imposed for the second count and, in my view, the outcome of this appeal, because it is a Crown appeal, will be determined largely by a consideration of whether the totality of the criminality before his Honour is adequately reflected in the total sentence imposed having regard to the maximum penalties prescribed for the offences on the indictment. If it is, this Court would be unlikely to intervene simply to restructure the sentence, see R v Carr [2002] NSWCCA 434 at [35]. 21 The facts in respect of the second count can be stated briefly. On 17 July the respondent's vehicle happened to be stopped by a police officer unconnected with the investigation of the respondent that was then underway by the Crime Commission. On the front seat of the vehicle was a small black bag. In it was found a loaded .32 calibre pistol together with a further eight rounds of ammunition. Also found in the bag were items indicative of the supply of drugs and a significant amount of amphetamine. There was also a quantity of jewellery in plastic bags. A search of the respondent's wallet revealed the sum of $780 dollars and a piece of paper listing amounts of chemicals. The respondent was also in possession of the mobile phone upon which the intercepted calls had been made or received. 22 The respondent's possession of this firearm gave rise to the second count in the indictment. The respondent maintained to police that he found the bag in a stormwater drain shortly before police searched the vehicle. This offence was a serious one as recognised by the sentencing judge. The fact that the weapon was loaded, capable of being fired and found with additional ammunition indicated that the respondent intended to use it if necessary. His possession of the weapon was clearly part of his involvement in the supply of drugs but his Honour, correctly in my respectful opinion, considered it to be a separate act of criminality from that revealed by the first count. 23 At the time of the commission of this offence the respondent was the subject of a number of bonds imposed in the Local Court for firearms offences. He readily admitted to police this fact and that he was aware that the maximum penalty for the unauthorised possession of the weapon was 14 years imprisonment. The offence showed the contempt the applicant had for the law in respect of the possession of firearms and the risk he was prepared to run in order to carry out his business of trafficking in drugs. It was an offence that itself required a substantial sentence at least in order to deter the applicant from such conduct in the future. 24 Further, when sentencing for this offence his Honour was required to reflect the fact that he was asked to take into account three matters relating to firearms on a Form 1. One of these matters related to a considerable amount of ammunition of various types found in the respondent's home. The two other matters concerned the possession by the respondent of firearms located in his premises; one charge related to two shotguns and the other to a blank-firing pistol. 25 The respondent was 43 years of age when sentenced and had little criminal record apart from the matters to which I have referred for which he received the benefit of bonds in the Local Court and about which I will say a little more shortly. The respondent's wife gave evidence before his Honour but his Honour found himself unable to accept her evidence as to the circumstances in which the respondent was said to have committed the offences. The respondent did not give evidence. His Honour stated that he did not accept the suggestion that the respondent was driven by personal circumstances to commit the offences or that his business in dealing drugs was unprofitable. His Honour concluded that there was no evidence of contrition or as to the prospects of rehabilitation. He found that there were no special circumstances justifying a reduction in the otherwise appropriate non-parole period notwithstanding that the sentence would be the first term of imprisonment served by the respondent. His Honour accepted the Crown's submission that, apart from the plea of guilty, there was nothing to mitigate the seriousness of the offences. Sensibly Mr Doyle has made no attempt to challenge these findings: they were well open to his Honour. 26 As I have indicated the Crown has asserted that there were errors by his Honour which might account for what the Crown says is a manifestly inadequate sentence. I do not believe it is necessary to deal with them in any great detail. However, I should refer to one matter because of its significance to the evaluation of the respondent's criminality: this is the respondent's criminal record. His Honour accepted that a relevant matter to take into account was the fact that at the time of the commission of the offences the respondent was subject to bonds from the Local Court. As I have indicated, the offences for which he had been sentenced included both drug and firearms offences. The Crown makes two complaints about his Honour's remarks in reference to this matter; first, that his Honour was in error as to the number of bonds to which the respondent was subject at the time, and, second, that his Honour misunderstood the relevance of the fact that he was subject to these bonds. 27 In his remarks Judge Coolahan referred to the fact that on 20 November 2002 at the Toronto Local Court the respondent was placed on three bonds each for a period of three years for goods in custody and firearms offences. The correct position was that the respondent had on that date at that Court been placed on seventeen bonds, sixteen of which related to firearms offences. However, his Honour correctly noted that, on 1 May 2001 at the Newcastle Local Court the respondent was placed on a bond for an offence of supply cannabis, this offence having been dealt with only eight days before the commencement of the intercepted calls on the respondent's mobile phone. The Crown accepts that his Honour's error in respect of the Toronto Local Court may have occurred because of the manner in which the material was presented to him even though the Crown's representative had at one stage in the proceedings indicated that there were sixteen matters dealt with in that Court. 28 In my view his Honour's error in this regard is of no relevance to the issue before this Court. Whether the respondent was subject to three or seventeen bonds hardly mattered provided that his Honour took into account in an appropriate and principled way that the respondent was on conditional liberty in relation to similar offences at the time he committed the offences for which he was to be sentenced. His Honour referred to the fact that the bonds related to a number of firearms including four shortened rifles and three shortened shotguns. 29 However, the Crown's complaint as to the manner in which his Honour took into account the respondent's prior criminal record has more substance, at least in a technical sense. His Honour stated:

The significance of the prior offences is firstly to gainsay any suggestion that the current offences were out of character and, secondly, they demonstrate that the offender has displayed a continued attitude of disobedience to the law, and in my view, make any consideration of rehabilitation largely irrelevant in the absence of very powerful evidence to the contrary, none of which has been present in these proceedings.

It should be noted that his Honour indicated that apart from the matters for which the respondent was given bonds, there was little else of significance in his criminal record. 30 The Crown submits that the real relevance of the respondent's recent criminal record was the fact that he was on conditional liberty for similar offences when he committed those with which his Honour was concerned rather than the fact that he had prior criminal convictions. It is well established that the fact that an offence was committed while the offender was at large in the community and subject to a bond, bail or probation is an aggravating feature of the offence committed. It is part of the objective criminality of the offence. Such a feature generally requires that the sentence acts as a deterrent to others in the community who are similarly on conditional liberty. It also may raise a consideration of the need for personal deterrence in a particular case. 31 What his Honour said in the passage quoted above reflects what was stated by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 about the general relevance of a prior criminal record regardless of whether that record reveals that the offender was on conditional liberty at the time of the commission of the offence. The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted". 32 But, if what his Honour said about the relevance of the record was technically inaccurate, it has little significance in a determination of whether the sentence imposed was erroneous. His Honour clearly treated the fact that the respondent had been given bonds but yet re-offended as indicating that a more severe sentence was warranted. The precise reason he gave for coming to that decision, which was clearly correct, is not, in the circumstances of this case, significant. 33 In light of the fact that the respondent had pleaded guilty his Honour determined that a discount for utilitarian benefit of that plea should be "in the range of 15 to 20 per cent but at the lower end of that range". In fact the discounts given were about 18 per cent for the offence in Count 1 and 20 per cent for the offence in Count 2. Mr Doyle conceded that the appropriate range was within 10 to 15 per cent but submitted that the Court would not interfere with the sentence imposed on the basis of this ground of appeal if otherwise the sentence was appropriate. I accept that submission. 34 While there were, in my respectful opinion, errors in what his Honour said when passing sentence on the respondent, I wish to make it clear that his Honour gave lengthy, considered reasons to justify the sentence he imposed. The overwhelming majority of what his Honour said when imposing sentence on the respondent is unimpeachable both as to findings of facts made and the enunciation of the relevant sentencing principles. The sentencing remarks contain statements appropriately emphasising the seriousness of the respondent's criminality and recognising the need for general deterrence both in relation to his involvement in the business of supplying drugs and his possession of firearms. 35 The question at the end of the day is whether the sentence imposed is so inadequate that this Court should intervene to increase it notwithstanding the principles that constrain the exercise of that power. In my view it should. The sentence imposed simply does not adequately reflect the seriousness of the criminality before his Honour. It does not perhaps matter whether that inadequacy is the result of the specific errors noted above or of some unidentified error, or errors, of principle that must have controlled the exercise of his Honour's discretion. The sentence falls so far short of what was required to denounce the respondent's criminal conduct and to endeavour to protect the community from like-minded persons that it must be corrected. 36 The Crown Prosecutor, not without considerable diffidence and reluctance to do so but at the persistent urging of the Court, submitted that a total head sentence of 13 years imprisonment would have been appropriate. With respect, that seems to me to be a very fair submission and such a sentence appears to me to fall roughly within the middle of the available range. Although we were referred to a number of decisions of this Court, they are of little assistance in light of the facts of this particular matter. 37 Having regard to the principle of double jeopardy inherent in a Crown appeal and taking into account the delay since sentence was imposed, I would not propose that a sentence of that length now be imposed. In accordance with current sentencing practice, I have considered what should be the appropriate sentence for each of the offences on the indictment, taking into account in each case the matters on the Form 1. In forming that view I have taken into account all relevant matters of aggravation and mitigation including the appropriate discount for the pleas of guilty of about 15 per cent. Like the sentencing judge, I believe that the criminality in the two offences is distinct, although it is not unconnected, and, therefore, in order to reflect the totality of the criminality involved in the two offences, there should be some partial cumulation of the sentences. 38 The overall non-parole period imposed by his Honour exceeded 75 per cent of the overall head sentence to a substantial degree. The overall head sentence was 8 years 3 months and the overall non-parole period was 7 years 3 months. The minimum period that the respondent had to serve was thus 88 per cent of the head sentence. This was an unusual course to be followed even though his Honour was clearly justified in finding that there were no special circumstances within the terms of s 44 of the Crimes (Sentencing) Procedure Act. Although it was within his Honour's discretion to depart from the 75 per cent ratio specified in that section, his Honour gave no specific reasons for choosing a parole period of only 12 months. It should be noted that each of the non-parole periods specified were 75 per cent of the relevant head sentence. This leads me to a concern whether his Honour intended the proportion of the minimum period of imprisonment as against the total sentence to be so high. Generally, in order to preserve the statutory ratio in a case of cumulated sentences, the court reduces the second non-parole period by finding special circumstances in the fact that the sentences are to be served cumulatively. To do otherwise is to bring about the result that the overall minimum term will exceed the statutory ratio. 39 In any event, in light of the overall sentence, which I believe should now be imposed upon the respondent, the statutory ratio should be preserved between the minium period he is to serve before he is eligible to be released to parole and the total term of the sentences. In order to achieve this result it is necessary to find that special circumstances exist in respect of the sentence for the second count, those circumstances being the fact that this sentence is to be served partly cumulatively with the sentence for the first count. 40 I propose that the appeal be allowed and the sentences imposed by Judge Coolahan be quashed. In respect of the first count, and taking into account the matters on the form 1 the respondent should be sentenced to 8 years imprisonment to date from 9 December 2001. There should be specified a non-parole period of 6 years to expire on 8 December 2007. In respect of the second count and taking into account the matters on the form 1, the respondent should be sentenced to 6 years imprisonment to commence on 9 December 2006. There should be a non-parole period specified in relation to that sentence of 2 years 3 months to expire on 8 March 2010 the date upon which the respondent is eligible to be released to parole. 41 SMART AJ: I agree with Howie J.

1. THE COURT: Since judgment in this matter was handed down and the orders of the Court pronounced, it has been brought to the Court's attention that there is a conflict between the term of the non-parole period specified in relation to the sentence for the second count and the date upon which that period is to expire. The judgment states that the non-parole period is to be one of 2 years 3 months in relation to a sentence of 6 years that commences on 9 December 2006 but that the non-parole period is to expire on 8 March 2010, which is 3 years 3 months from the date that the sentence commences. Paragraph [39] of the judgment of Howie J makes it clear that the Court intended that, as against a total sentence of 11 years, the minimum period of custody the respondent is to serve before parole eligibility is 8 years 3 months. This accords with the statutory ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act. Clearly there was a typographical error in paragraph [40] and the term of the non-parole period in respect of the sentence for the second count should have read 3 years 3 months.

2. The non-parole period in respect of the second count is to be 3 years and 3 months from 9 December 2006 and to expire on 8 March 2010 the date upon which the respondent is to be eligible for release to parole.

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