Solicitors:
Saba Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/191373
Decision under appeal Court or tribunal: District Court at Tamworth
Jurisdiction: Criminal
Date of Decision: 3 October 2017
Before: McLennan SC DCJ
File Number(s): 2015/338755
[2]
Judgment
PAYNE JA: At the conclusion of the hearing of this matter on 30 May 2018, the Court made the following orders:
"1. Leave to appeal in respect of Ground 2 granted.
2. Appeal allowed.
3. Sentences imposed by McLennan DCJ on 3 October 2017 quashed.
4. On each count, fix an aggregate sentence of 2 years 11 months to commence on 23 June 2016. Fix a non-parole period under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) of 1 year 11 months and 6 days expiring on 29 May 2018.
5. Note that the effect of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the sentence imposed is taken to be subject to a parole order (being a statutory parole order) directing the release of the appellant. Accordingly, the effect of the statute is that the appellant is to be released to parole forthwith."
Russell v R [2018] NSWCCA 115 | Case summary | Zoe
For the reasons explained by Adamson J, the errors made by the sentencing judge identified in ground 2 of the appeal required this Court to resentence the applicant.
This is an extraordinary case. The uncontested evidence is that the applicant's life expectancy in the order of "weeks to months" and his illness can accelerate quite quickly. Mr Russell has been admitted to palliative care at Long Bay Hospital. He has family in the Newcastle area and the evidence is that palliative care beds are available in Newcastle. For the reasons given by Adamson J, I consider that the purpose of punishment has already been served by the time in custody served by the applicant to date.
I also agree with the remaining reasons of Adamson J.
JOHNSON J: The reasons expressed by Payne JA and Adamson J serve to explain as well my reasons for joining in the orders made by the Court at the conclusion of the hearing on 30 May 2018.
ADAMSON J: At the conclusion of the hearing of the application in this Court on 30 May 2018, the presiding judge (Payne JA) announced the orders of the Court, which are set out in his Honour's reasons above. My reasons for joining in these orders are set out below.
The applicant sought leave to appeal against a sentence imposed on 3 October 2017 by McLennan SC DCJ for the following offences:
1. supply prohibited drug (112.5g of heroin) between 29 January 2016 and 6 April 2016 pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and
2. deal with the proceeds of crime ($24,755) knowing that it was proceeds of crime on 4 November 2015 pursuant to s 193B(2) of the Crimes Act 1900 (NSW).
A further charge of possess prohibited drug (small quantity of heroin) pursuant to s 10(1) of the Drug Misuse and Trafficking Act was taken into account in the sentence on count 1 in a Form 1 pursuant to ss 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The maximum penalty for the offence for count 1 was 15 years' imprisonment and/or 2000 penalty units. The maximum penalty for count 2 was 15 years' imprisonment. There is no standard non-parole period for either offence.
There was a significant question as to what sentence had actually been imposed by the sentencing judge, which will be considered below in the context of the second ground.
The applicant sought leave to appeal on two grounds. The first ground was that the sentence was manifestly excessive. The second ground was:
"His Honour erred by miscalculating the periods of custody as to the sentences for the proceeds of crime and the supply offences and further erred in declining to direct that part of the proceeds offence run concurrently with the supply offence."
Because the Court was persuaded that the second ground had been made out and that the applicant would need to be re-sentenced in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ), it was necessary only to address the second ground.
[3]
The sentences imposed
Immediately after ordering the applicant's convictions on the two counts, the sentencing judge:
1. indicated that he would pronounce sentence for count 2 before court 1 and said: "[t]here will be some concurrency between the two as I regard count 2 as reflecting the enterprise that he [the applicant] was otherwise involved in that is the substantial subject of count 1."
2. pronounced that the sentence imposed for count (2) was a non-parole period of one year's imprisonment commencing on 23 June 2016 with a balance of term of 12 months which was to commence on 23 June 2017 and expire on 22 June 2018.
3. pronounced that the sentence imposed for count (1) was a non-parole period of 3 years and 6 months' imprisonment commencing on 23 June 2018 and expiring on 22 December 2021 with a balance of term of one year and 6 months to expire on 22 June 2023.
4. announced that the overall effective sentence was a period of 6 years and 6 months imprisonment with an effective non parole period of 4 years to date from 23 June 2016.
[4]
The parties' submissions
The applicant submitted that inconsistency between the matters which I have set out in (1)-(4) above ought lead to the sentences being set aside.
The respondent did not submit that there was any way of reconciling the inconsistent orders and statements made by the sentencing judge. Indeed, the respondent accepted that:
"[I]t is difficult to discern a very straightforward method of correcting the error which would result in the imposition of the sentence intended by the sentencing judge."
[5]
Consideration
There were several difficulties in reconciling the matters in (1) to (4) above. First, the sentence for count 1 commenced a year after the non-parole period for the sentence for count 2 had expired, in breach of s 47(4) of the Crimes (Sentencing Procedure) Act. Secondly, the overall term announced by the sentencing judge was inconsistent with the sentences his Honour had imposed for the two counts. Thirdly, the sentences were wholly accumulated, notwithstanding his Honour's statement that there would be some concurrency.
As the individual sentences imposed for counts 1 and 2 did not comply with s 47(4) of the Crimes (Sentencing Procedure) Act, Justicelink did not allow the sentences to be entered. Justicelink is the computerised system used by courts in New South Wales to enter orders and sentences imposed. Justicelink is shared with government agencies, including Corrective Services. The difficulty created by the non-compliance with the Crimes (Sentencing Procedure) Act led Justicelink (and the applicant's custodial records) to record the imposition of an overall effective sentence of 6 years imprisonment with an effective non parole period of 4.5 years, dating from 23 June 2016. The effect of the Justicelink entry was to reduce the announced overall sentence (in (4) above) by 6 months and increase the announced overall non-parole period (in (4) above) by 6 months. Unlike the overall effective sentence announced by the sentencing judge, the Justicelink entry preserved the statutory ratio between the balance of term and the non-parole period provided for in s 44(1) of the Crimes (Sentencing Procedure) Act. Accordingly, the Justicelink entry did not give effect to the sentencing judge's finding of special circumstances, which was reflected in the ratio of 60% between the non-parole period and the total term in the overall sentence announced by the sentencing judge.
While it would be possible to impose the same individual sentences as his Honour imposed for counts 1 and 2, and arrive at the same total effective sentence of 6 years and 6 months with a non-parole period of 4 years, this would require substantial manipulation of the figures. The order in which his Honour imposed the sentences would need to be reversed (in order to comply with s 47(4) of the Crimes (Sentencing Procedure) Act) and the commencement and expiry dates would also need to be adjusted.
Discrete mathematical errors can be corrected by this Court in certain circumstances: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] (Bathurst CJ, Beazley P, R A Hulme, Schmidt JJ agreeing). The respondent did not contend that the errors identified in the present sentences fell into this category.
In these circumstances I am persuaded that this Court has no alternative but to set aside the sentences imposed by McLennan DCJ and re-sentence the applicant. It is therefore not necessary to consider the first ground.
[6]
Re-sentencing
Because this Court is required to undertake the task of re-sentencing afresh, the authorities which limit the reception of fresh evidence on appeal do not apply. The applicant adduced further evidence on re-sentence which established that he was recently (since the imposition of the sentences by McLennan DCJ) diagnosed with terminal liver cancer.
The evidence before the sentencing judge (which is also before this Court on re-sentence) was in the form of oral evidence from the applicant and a pre-sentence report. There was a detailed statement of agreed facts. It was not suggested that any of the findings of the sentencing judge as to other matters were in error. The facts on which this Court will resentence are summarised below.
The applicant was committed for trial from the Tamworth Local Court on 14 December 2016. His plea of guilty was, through no fault of his own, delayed by negotiations.
The applicant's criminal conduct was detected by a police investigation into the supply of prohibited drugs in the Tamworth area. The applicant was using drugs himself as well as supplying drugs to users in Tamworth for financial reward. He had obtained the drugs from an up-line supplier in Sydney. On 26 February 2016 the applicant supplied 56g of heroin. On 2 April 2016 the vehicle in which the applicant and another male were driving was stopped by police and searched. The police found drug paraphernalia, including methadone, alcohol swabs, needles and an ice pipe. Subsequently, police, with the assistance of qualified mechanics, conducted an extensive search of the vehicle. They located a plastic bag, which contained smaller plastic bags containing a substance, within a concealed area near the stereo system. The substance contained in the bags was later analysed to be 56.5g of heroin with a 70.5% purity.
It was an agreed fact that the total amount of heroin was 112.5g (being the total of 56g on 26 February 2016 and 56.5g on 2 April 2016). It was also an agreed fact that on 25 November 2015 police searched a vehicle and found $25,755, which the applicant agreed were proceeds of crime which belonged to him.
His Honour found the applicant to be both a user and a mid-level supplier of heroin. The applicant's techniques as a supplier were relatively sophisticated in that he used multiple phones, codes and anti-surveillance precautions. The sentencing judge assessed the objective seriousness of the supply offences as "above the midrange".
His Honour referred to the applicant's use of heroin from the age of 16 and found:
"[W]hat emerged was a picture of a man who, whilst having had a longstanding addiction to heroin has, at various times in his life, been able to manage it by recourse to the methadone program."
For about 10 years up to 2014 the applicant was managing his heroin addiction by complying with the methadone program. In about 2014 his gall bladder gave him significant pain, which led him to self-medicate with heroin which, in turn, resulted in the offences for which he is to be re-sentenced. His Honour noted that the drug use continued even after the removal of the applicant's gall bladder. His Honour noted that the offending, in the past as well as for the index offences, related to the applicant's drug use.
The sentencing judge found the applicant's prospects of rehabilitation to be good by reference to his good work history and also to the substantial periods during which he managed his addiction with the methadone program. The applicant was on conditional liberty at the time of the offences.
The Court is required to sentence the applicant in accordance with proper sentencing principles. The short life expectancy of the applicant does not entitle the Court to disregard the seriousness of the offending conduct: Dudgeon v R [2014] NSWCCA 301 at [5] (Beazley P) and [25]-[26] (Fullerton J).
I accept that in the circumstances a discount of 25% for the applicant's plea of guilty is appropriate.
I agree with the sentencing judge's assessment of objective seriousness for the heroin supply offence of "above mid-range". It was part of a course of conduct which involved a level of sophistication and in which the applicant had an important role. General deterrence and harm to the community would usually be important considerations when sentencing offenders for offences such as these. The applicant's conduct involved the repeated dissemination of heroin into a country town for profit, with all that follows in terms of consequential social harm to the wider community. However, for the reasons given below, the importance of these factors is diminished in the circumstances of the present case.
The additional material tendered on behalf of the applicant establishes that he has been diagnosed with "advanced metastatic cholangiocarcinoma in the left lobe of the liver". The applicant is not a candidate for treatment other than palliative care. A recent opinion of the applicant's radiation oncologist, Dr Martin, is that the applicant has a life expectancy of 6 months or less. Dr Nicholls, the Acting Clinical Director Primary Care at Justice Health opined, in a letter dated 17 May 2018:
"The life expectancy from this type of cancer is in the order of weeks to months and as this type of cancer can accelerate quite quickly this could be optimistic prognosis. I have consulted with his treating teams and the multidisciplinary opinion is strongly supportive of recommendation for early release of this man. Whilst palliative care can include some outpatient treatment it is quite likely that Mr Russell will require hospital or hospice admission in the near future."
I am satisfied that the applicant's terminal condition renders his remaining time in custody substantially more onerous, not only because he does not have access to hospice care, but also because he is presently incarcerated in the hospital attached to Long Bay Gaol in Sydney. Accordingly, the applicant is a significant distance from his family, who live in Newcastle. A letter from the applicant's sister, who was in court for the sentence hearing, was tendered. She said that she would be able to provide accommodation for the applicant if he were released and that suitable palliative care and medical facilities were available in Newcastle, not far from where she lives.
It is relevant for this Court to have regard to the capacity of the executive to exercise its discretion in exceptional circumstances: Dudgeon v R at [28] (Fullerton J). Section 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) expressly allows for a grant of parole where an offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional or extenuating circumstances. The availability of another avenue, while relevant, does not affect this Court's obligation to re-sentence on the basis of the evidence available as at the date of re-sentence. Nor can this Court make any assumption as to how the Parole Authority would exercise its discretion if any such application is made.
I am satisfied that the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act can be adequately fulfilled by imposing a sentence on the applicant which is substantially less than the one imposed by the sentencing judge, having regard to the further evidence which was not, and could not have been, available to his Honour.
The applicant has been in custody since 23 June 2016, a period of almost two years. In recent times, he has been diagnosed with, and is suffering from, terminal cancer. He knows that his life expectancy is very short. I consider that the purpose of punishment has already been served by the time served to date. I do not consider the applicant to be, any longer, an appropriate vehicle for general deterrence or denunciation, having regard to his parlous prognosis. Specific deterrence is no longer relevant, having regard to his physical condition. The harm to the community, which is generally a substantial factor when sentencing for drug offences is less so in the present, highly exceptional, circumstances.
For these reasons, I agree that the aggregate sentence imposed on the applicant by this Court on 30 May 2018 is appropriate. It is, accordingly, necessary to indicate the sentences that would have been imposed had separate sentences been imposed, rather than an aggregate sentence: s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. In that event, I would have imposed the following sentences (taking into account a discount of 25% for the applicant's pleas of guilty): 2 years and 8 months' imprisonment for count 1 (taking into account the Form 1); and 8 months' imprisonment for count 2.
[7]
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Decision last updated: 06 June 2018