Richard Warren James CONNELLY v R

Court of Criminal Appeal (NSW)|2012-02-15|Before: McClellan CJ, Hidden J, Rothman J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: I agree with Rothman J 2HIDDEN J: I agree with Rothman J 3ROTHMAN J: The applicant, Richard Connelly, seeks leave to appeal the sentence imposed upon him by the District Court for the offence of recruiting another to carry out a criminal activity contrary to s 351A of the Crimes Act 1900. Mr Connelly had sought to procure someone to render the potential victim blind and deaf, because the victim had provided information to the police that led to Mr Connelly being charged with manufacturing drugs. 4The offence carried a maximum penalty of 7 years' imprisonment and may be prosecuted summarily: Schedule 1, Table 1 Criminal Procedure Act 1986. Mr Connelly was sentenced to a non-parole period of 2 years, 2 months and 22 days as part of a head sentence of 2 years, 11 months and 21 days (hereinafter "the non-parole period" and "the head sentence" respectively, and overall as "the sentence"). 5The District Court imposed the sentence on 16 March 2011 and the sentence commenced on 16 December 2010 (i.e. the sentence was backdated three months). At the time that he was sentenced, Mr Connelly was serving a sentence (hereinafter "the earlier sentence") imposed for an earlier offence (hereinafter "the earlier offence"), being a sentence of imprisonment for a non-parole period of 18 months as part of a head sentence of 3 years, commencing on 17 June 2009. 6The offence that gave rise to the sentence was committed in June 2009 while Mr Connelly was on bail pending commencement of the earlier sentence. The non-parole period for the earlier sentence concluded on 16 December 2010 and Mr Connelly had been refused parole. Therefore, he was still imprisoned at 16 March 2011, when the sentence was imposed. 7The relevant sentences that had been imposed are best represented by the following table: COMMENCED CONCLUSION OF NON-PAROLE PERIOD CONCLUSION OF HEAD SENTENCE Earlier sentence 17/06/09 16/12/10 16/06/12 The sentence 16/12/10 9/03/13 6/12/13

8The applicant raises only one ground of appeal: "The sentencing judge erred in failing to find special circumstances and imposed a sentence which failed to give proper effects [sic] to s 44 of the Crimes (Sentencing Procedure) Act 1999." 9In reality, this ground of appeal raises some interlocking issues and, in particular, the principle of totality and the effect of accumulation of sentences on the fixing of an appropriate non-parole period.

10The applicant was engaged in manufacturing methylamphetamine and was arrested in relation to that offence in November 2006, due in part to information provided to the police by the prospective victim of the later offence. 11The applicant was released on bail on 19 January 2007. 12On 11 June 2009, while the applicant was still on bail, information was provided to the police by two of the applicant's associates and a controlled operation began. 13An undercover police operative, "Sam", met the applicant in the presence of the two associates. 14"Sam" was told by the applicant words to the effect that the applicant wanted "Sam" to make the prospective victim blind and deaf so that "he'll suffer for a long time" because "you go crazy in your own head if you can't see and you can't hear". 15The applicant gave "Sam" the victim's name and the suburb in which he lived, and said he would try and get a photograph for him. "Sam" arranged to collect the applicant and go with him to a methadone clinic at St Marys so that the applicant could identify the victim. 16The applicant agreed to pay "Sam" in methylamphetamine. 17The following Tuesday, being 28 July 2009, "Sam" and the applicant drove to the methadone clinic at St Marys. While waiting for the victim, they had a further discussion about the applicant's desires for the victim to be blinded and deafened. They also discussed payment for "Sam" to do these acts. 18The victim did not attend the clinic and so the two left. The applicant took no further steps in relation to this offence.

19The applicant submits that the non-parole period imposed constituted 75 percent of the total term of sentence. However, the sentence, as already stated, was wholly cumulative on a previous sentence imposed, resulting in an overall non-parole period of approximately 83 percent. The applicant seeks a reduction in the non-parole period. 20The applicant submits that his Honour erred in not finding special circumstances (on the basis of the applicant's rehabilitation needs and the accumulation of the sentence) because: (a)Where, as in this case, accumulation has taken place, the sentencing judge should provide reasons for an increase in the ratio of the non-parole period to the remainder of the sentence: R v Dunn [2007] NSWCCA 312. (b)The absence of express reference by the sentencing judge to special circumstances indicates that his Honour may have overlooked giving appropriate focus to the statutory ratio: Briggs v R [2010] NSWCCA 250. 21Essentially, the Crown submits that it was within his Honour's discretion to decline to find special circumstances: see, for example, Ha v R [2010] NSWCCA 83. 22Further, in relation to s 44 of the Crimes (Sentencing Procedure) Act 1999, the Crown submits that the provision does not prohibit the imposition of a non-parole period exceeding the ratio of 3:1, whether in relation to a single sentence or accumulated sentences. Rather, the Crown suggests that s 44 strictly relates to the relationship between the period of full-time custody and the period on parole for each particular offence: Clarke v R [2009] NSWCCA 49; Musgrove v R [2007] NSWCCA 21. 23The Crown submits that, even though accumulation is a recognised basis for finding special circumstances, it is not mandatory for a sentencing judge to make such a finding: Barrett v R [2011] NSWCCA 213. In this case, the sentencing judge was not asked to find special circumstances based upon accumulation and thus, the Crown submits, the Court should not interfere with the outcome. 24Moreover, the Crown submits that, in the event that this Court finds error, no lesser sentence is warranted and, nevertheless, the appeal should be dismissed: s 6(3) of the Criminal Appeal Act 1912.

25As earlier stated, underpinning the criticism of the sentence imposed is the principle of totality, as it applies to the task of imposing a sentence at a time when an offender is already in custody. 26The more orthodox approach when sentencing an offender, who is already serving a sentence, is for the sentencing judge to impose a sentence that would have been likely to have been imposed if the offender had committed all of the offences in one jurisdiction and had been sentenced at one time. The requirement remains that each individual sentence reflects the criminality of the offence to which it relates and the overall sentence reflects the total criminality of the crimes committed: Pearce v R [1998] HCA 57; (1998) 194 CLR 610. 27The charging of two or more offences that involve common elements requires the court to ensure that there is no double punishment for the one offending course of conduct: Pearce at [40]. A commonsense approach to the issue must be taken: Pearce at [42]. 28Only after fixing an appropriate sentence for each offence, should a sentencing judge consider questions of accumulation and concurrency and questions of totality: Pearce at [45]. The foregoing principles apply even where there is a significant delay between the different sentencing exercises and even where there are different jurisdictions or judges involved: Mill v The Queen (1988) 166 CLR 59. 29The sentencing discretion must be exercised judicially and cannot be calculated arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. There is, therefore, no single correct answer. It is always the task of the sentencing judge to apply the general sentencing principles to fix an appropriate head sentence and an appropriate period during which the offender is eligible for parole, bearing in mind the often disparate goals of punishment, protection of society, deterrence of the offender and others who might be tempted to offend, retribution and rehabilitation: s 3A of the Crimes (Sentencing Procedure) Act and Veen v R (No 2) (1988) 164 CLR 465 at 476. 30Further, it is a matter within the discretion of the sentencing judge whether the judge considers there are special circumstances that warrant the fixing of a greater proportion of the sentence as the period for which an offender is eligible for parole and the proportion that the legislature has prescribed: s 44 of the Crimes (Sentencing Procedure) Act. 31The prescription in s 44 of the Crimes (Sentencing Procedure) Act relates to individual sentences and does not preclude the fixing of a ratio greater than 3:1: see Musgrove and Barrett. 32Accumulation of sentences has an arithmetic effect on the proportion. Where, as here, a sentencing judge has, by fixing a sentence that reflects the 3:1 ratio, implemented an overall sentence that reflects a greater than 3:1 ratio without otherwise indicating such an intention, the Court will be more astute in assuming that the issue has been overlooked. In my view, in this case, it has been overlooked or alternatively, the sentencing judge has not applied the totality principle. 33The offence is serious. The sentence needs to reflect that seriousness. Yet no complaint is made by the Crown that the head sentence is inadequate. In my view, the head sentence is adequate in all of the circumstances, but the length of potential parole is inadequate to enable, subject to the satisfaction of the NSW State Parole Authority, an appropriate period for rehabilitation and assimilation into the community. 34I do not propose to alter the head sentence, and I take the view that the overall potential parole period ought to reflect the ratio that the sentencing judge thought was appropriate, namely, 3:1. The sentencing judge for the earlier offence fixed a lower ratio, namely, 1:1. 35However, I do not consider it appropriate to fix a sentence by reference to a number of days. It is far better to round any sentence that may be imposed. Other than rounding the days, I would not interfere with the head sentence imposed and would implement a ratio for the non-parole period of 3:1. 36For the foregoing reasons, I propose that the Court make the following orders: (1) Leave to appeal granted; (2) The sentence imposed by the District Court on Richard Connelly on 16 March 2011 be quashed and, in lieu thereof, he be sentenced to a non-parole period of one year and nine months commencing 16 December 2010 and concluding 15 September 2012 with a remainder of term of 14 months, concluding 15 November 2013.

Amendments 01 August 2012 - incorrect name Amended paragraphs: Name of solicitor DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2012

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