(1) Disregarding the criminal antecedents
44 In his remarks on sentence Coorey DCJ referred to the antecedents of the respondent and said that he would "regard the prisoner as a person of good character with no relevant criminal history".
45 The appellant submitted that the criminal antecedents of the respondent demonstrated previous serious disregard for criminal law and as such was relevant to be considered. It was submitted that any offence of assaulting police officers was to be regarded as serious and such as to show a significant disregard for the criminal law.
46 It was also submitted that his Honour failed to accurately record the number of assault charges and failed to note the serious nature of them. This submission refers to his Honour's statement in the remarks on sentence that "Mr Ainsworth points out that the only criminal record that related to the prisoner refers to a charge of assault and using offensive language in 1995". It was submitted that his Honour failed to recognise there were two charges and that they were charges of assaulting police officers. This, it is submitted, indicated that his Honour did not acknowledge the real gravamen of those antecedents. It was also submitted that considered appropriately such prior offences precluded the respondent from being regarded as a person of good character with no relevant criminal history.
47 The appellant also submitted that his Honour thereby erred in that, although the earlier offences were not drug offences, they were offences that ought to have been taken into account when considering the degree of any leniency to be allowed to the respondent in relation to his antecedent history. It was submitted that such leniency ought not to have been to the same extent to that which would have been extended to a person of good character with no relevant criminal history.
48 The respondent submitted that to ascertain whether offences were appropriately categorised as a serious disregard of the law the penalty imposed should be taken into account. The respondent highlighted the fact that (1) at that time the respondent was a teenager; (2) he was granted a 556A bond on each count and; (3) no appeal was lodged.
49 It was submitted that it is for the sentencing judge to assess the relevance of any criminal history and in this case, on the material tendered, Coorey DCJ was entitled to find that the respondent was a person of good character.
50 The capacity for a court to dismiss charges under s.556A of the Crimes Act reflected the willingness of the legislature, and thus the community, to provide to first offenders, in certain circumstances, a second chance to maintain a reputation of good character. The fact that such an opportunity was afforded to the respondent is in my view appropriately recognised by his Honour in regarding the respondent as a man of good character with no relevant criminal history. I am not satisfied that his Honour fell into error in this approach.
(2) Totality
51 The sentencing judge in his remarks on sentence said "the facts show that the prisoner was a major player in a substantial heroin transaction to supply 700 grams of heroin (18.6); that the court could not infer that the prisoner was trading on his own behalf (20.5); that "although it is difficult to classify the prisoner's precise role or position in this crime, there is no doubt that the prisoner is substantially involved in the events leading up to the supply of drugs. There is no doubt that he is a major player…I cannot be satisfied that this prisoner is the major player or even the source supplier". (22.5). His Honour accepted that the prisoner was a principal in the first degree and that he was a major player but he could not be satisfied beyond a reasonable doubt that he was the source supplier. (22.7) His Honour also said that the respondent played a major role in a substantial operation to supply 700 grams of heroin (24.2).
52 In opening his remarks on sentence his Honour stated that in imposing a sentence he had taken into account an offence on Form 1 of being knowingly concerned in the supply of a commercial quantity of heroin on 15 October 2000 (18). After referring to statistics from the Judicial Commission his Honour said that he accepted the respondent's counsel's submission that a "total sentence of six years is slightly above the appropriate sentence that should be given in this matter" (24). His Honour continued "it seems to me that after taking into account the Form 1 offence the total sentence should be five and a half years. I note that the Form 1 offence occurred merely four weeks or so before the offence in the indictment".
53 In submissions prior to the imposition of the sentence an exchange occurred between counsel for the respondent and his Honour. It was as follows:
Counsel: Your Honour with respect, it is going to come down and then it is going to go back up a little bit because of the one on the form 1.
His Honour: Yes.
(tr.16.52. 1/2/02)
54 The appellant submitted that it is apparent that Coorey DCJ acceded to the proposition that in the circumstances of this matter the sentence had only to be increased "a little bit" to reflect the Form 1 offence.
55 His Honour does not refer to the details of the Form 1 offence in the consideration of the objective seriousness of the offence for which the respondent was to be sentenced. I agree with the appellant's submissions that the remarks on sentence concentrate exclusively on an assessment of the role of the respondent in the offence on the indictment. It was submitted that had the sentencing judge found that the respondent played a significantly different role in the offence on the Form 1 it would be reasonably anticipated that he would have recorded such a distinction in his remarks in sentence. That was not done.
56 When taking an offence into account on a Form 1, the sentencing judge is required to impose a sentence that appropriately reflects the totality of the criminality of the offender: Regina v Morgan (1993) 70 A Crim R 368 at 371-372 per Hunt CJ at CL; Regina v Barton (2001) 121 A Crim R 185 per Carruthers AJ at 35, with whom Spigelman CJ at 48, and Sperling J at 66 agreed. It is submitted that it is incumbent upon the sentencing judge to appropriately increase the sentence for the offence of supply heroin on the indictment to reflect that the offence of knowingly take part in the supply on the Form 1.
57 His Honour decided that six years was slightly above the appropriate sentence that should be given in the matter. It is apparent that his Honour took the view that a sentence of less than six years was "appropriate". He then seems to have taken the Form 1 offence into account to reach a sentence of five and a half years.
58 The respondent submitted that the Crown had conceded that 6 years was at the lower end of the range for this offence and that in those circumstances this Court should not intervene: R v Jermyn (1985) 2 NSWLR 194; R v O'Connor [2002] NSWCCA 156 at [32]-[34] The basis of that submission is an exchange between the Crown and Coorey DCJ on 1 February 2002. The Crown had referred his Honour to a case in which persons of the same surname as the respondent had been sentenced: R Nguyen [2000] NSWCCA 547. That was a case in which the accused had been arrested after being stopped at a random breath testing station and the police had found 725g of heroin and some scales in the car.
59 The exchange included the following immediately after the Crown referred to R v Nguyen:
Crown: The Crown's position is the tariff, if you like, that an appropriate tariff would commence at some six years on the bottom, with a further figure to take account of the Form 1 matter….If I could clarify..six on the top, a head sentence of six years would be at the bottom of the range appropriate for this sort of offence.
HH: Yes you mean a total sentence of six years.
Crown: Yes anything less than that…
HH: You say that's the bottom of the range.
Crown: Yes.
HH: I think Mr Ainsworth thought that you were saying that was the minimum term.
Crown: No, it is a mater for your Honour of course, yes, it is a matter for your Honour.
HH: Yes, but you say that six years in this matter before me, six years would be the bottom of the range.
Crown: I think so, yes your Honour
(tr. 8. 01/02/02)
60 There is in my view no concession by the Crown that the total sentence for the two offences, that is the one on the indictment and the further charge on the Form 1, would be six years at the bottom of the range. In the circumstances of this exchange I am of the view that the Crown was referring to the six years as being the bottom of the range for the matter on the indictment and that there would then have to be a "further figure" for the Form 1 offence. There is a lack of precision in this exchange and, in any event, having regard to the approach adopted by his Honour I am not satisfied that this exchange would or should prevent this Court from intervening in the circumstances of this case.
61 At sentence the Crown conceded with clarity that the respondent was entitled to the full discount and his Honour said that he would allow the full discount for the respondent's plea of guilty: Regina v Thompson & Houlton [2000] NSWCCA 309. It is submitted given that the term of the sentence was five years and six months, his Honour would appear to have started with a pre-discount sentence of seven years and six months. It was submitted that such a starting point was too low and that it failed to reflect the totality of the criminality involved in the offences. It was also submitted that after the deduction of the full discount for the plea the resultant term is manifestly inadequate in that, it too fails to appropriately reflect the totality of the respondent's criminality involved in the offences.
62 It seems to me that his Honour fell into error in that the Form 1 offence was not considered appropriately in the circumstances where the respondent had knowingly taken part in supply of 700g of heroin on 15 October 2000. To refer to it simply as having occurred "merely four weeks or so before the offence on the indictment" does not assist in ascertaining the approach that was taken to the Form 1 matter. However I am satisfied that whatever increase it was it could only have been a "little" increase, impermissibly with what is required in such circumstances: R v Morgan and R v Barton.
(3) Non-Parole period
63 Section 44(2) of the Crime (Sentencing Procedure) Act 1999 requires the sentencing judge to make a record of the reasons for the decision that special circumstances exist which justify the reduction of the non-parole period to less than three-quarters of the term of the sentence. The Crown submitted that his Honour failed to provide those reasons.
64 It was submitted that the remarks on sentence do not identify what special circumstances were in fact found by his Honour nor do the reasons appear for the decision to reduce the non-parole period because of those special circumstances. It was submitted that given that the non-parole period was reduced from the statutorily required 4 years and 2 months to 2 years and 6 months the failure to set out reasons discloses an error which had a significant and unexplained impact on the overall structure of the sentence imposed.
65 It is true that his Honour has not in his remarks on sentence set out the specific circumstances that he found to be "special circumstances". It is clear however from a review of the transcript of the sentencing proceedings on 1 February 2002 that his Honour identified a number of circumstances which he then stated were special circumstances. They were that the respondent was a drug user and was obviously going to need supervision (tr.10-11); that it was the respondent's first offence, first drug offence, and first time in gaol and that he had a need for counselling (tr.18). Section 44(4) provides that if the record of reasons for the existence of special circumstances is not made the sentence is not invalidated.
66 I am satisfied that the special circumstances identified in his Honour's statements in the sentencing proceedings justify a reduction in the statutory relationship between the non-parole period and the head sentence.
(4) Non-Parole Period Manifestly Inadequate.
67 Where a reduction in the head sentence occurs the application of the statutory proportion will have the result of reducing the non-parole period. Before a sentencing judge further reduces that period there must be a process of analysis which travels beyond that which would have been undertaken in the course of determining the head sentence: Regina v Simpson [2001] NSWCCA 534 per Spigelman CJ at 67.
68 It is submitted that his Honour failed to give the requisite separate consideration to whether such circumstances of the respondent warranted such adjustment in the non-parole period. It is submitted that such a period set by his Honour was manifestly inadequate in that it patently failed to appropriately reflect the criminality of the offences.
69 The respondent submitted that the adjustment was a matter for the sentencing judge and that the analysis is not required to be recorded.
Re-Sentence
70 It is apparent that the head sentence of five and a half years was reached, taking into account the Form 1 offence, and reducing the sentence by 25% for the full discount. That means that the original head sentence prior to reduction of the discount was 7 years and 4 months. The actual amount by which the head sentence was increased in taking the Form 1 offence into account is not certain. However it is apparent from an exchange between counsel and the sentencing judge that his Honour acceded to the correctness of the proposition that the sentence was going up "a little bit".
71 I am of the opinion that his Honour fell into error in this regard and that another sentence is warranted in law and that another sentence should have been passed. This was a very serious offence of the supply of a commercial quantity of heroin. The offence on Form 1 was also very serious. The seriousness of the offence and the totality of the respondent's involvement were not reflected in the sentence imposed by the sentencing judge. I propose therefore that the appeal be allowed and the sentence imposed by Coorey DCJ be quashed.
72 The respondent filed an affidavit in Court this morning setting out a number of matters referring to his involvement in courses within the prison system. Some of those were completed prior to the sentence being imposed. The respondent had by December 2001 completed an Alcohol & Drug Awareness Program and Stress Management Course. He also annexed a Certificate of Achievement in the Life Management Program Stage II dated 4 December 2001, two Statements of Attainment for courses in Information Technology (Computer Applications) both dated 14 January 2002 and a Certificate, valid to 22 April 2005, of Completion of the Course in Senior First Aid.
73 The respondent is currently involved in two courses. The first is the Job Seeking Skills Course that will conclude in two weeks. The second course is the Twelve Steps Drug and Alcohol program. The respondent is mid way through that course. The affidavit also states that the respondent currently works as an education clerk in the gaol library with duties that include typing and filing. He assists other inmates with their class work and studies and acts as a translator. In due course the respondent also intends to enrol in the Drafting Technology course. These are important matters and will be taken into account in re-sentencing the respondent.
74 Having regard to the further material filed on behalf of the respondent today, the significant and major role the respondent played in the supply of 700g of heroin but taking into account the double jeopardy in the Crown Appeal, I am satisfied that in re-sentencing, the appropriate starting point from which to fix the head sentence is 11 years, taking into account the offence of supply of 700g of heroin on the Form 1. Applying the full discount for the plea of guilty I would propose an appropriate head sentence of 8 years imprisonment commencing on 18 November 2000 and expiring on 17 November 2008.
75 The statutory non-parole period is 6 years. However it seems to me that a finding of special circumstances is justified in this matter. As his Honour said in the hearing on 1 February 2002, this is the respondent's first drug offence, it is his first custodial sentence and there is a need in this case for a longer period of supervision to enhance the respondent's prospects of rehabilitation a course upon which he has already commenced. In those circumstances and keeping in mind the need for such period to reflect the criminality involved I would propose that an appropriate non-parole period is 5 years to date from 18 November 2000. The respondent will be eligible to be considered for release on parole on 17 November 2005.
76 CARRUTHERS AJ: I agree with Bergin J.
77 STEIN JA: Accordingly, the orders of the Court will be as follows:
1. Appeal allowed.
2. Sentence imposed by Judge Coorey be set aside.
3. In lieu thereof the respondent sentenced to 8 years imprisonment commencing on the 18 November 2000 and expiring on the 17 November 2008 and the non-parole period of 5 years to date from the 18 November 2000. The respondent will be eligible for release on parole on the 17 November 2005.