STEVENS v REGINA

24 Ms Francis accepted that it was open to his Honour to have regard to the Form 1 matters, particularly the possession of a large amount of money likely to be the proceeds of drug sales, in assessing the objective gravity of the offence of supplying methylamphetamine. She also accepted that it was open to his Honour to quantify the amount by which the sentence for that count had been increased because of the Form 1 matters. In the joint judgment in Markarian v The Queen (2005) 228 CLR 357 at [41]-[43], it was held that that approach is permissible. It is still not the practice to do so, consistently with the view earlier expressed by Spigelman CJ in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146 at [44]: The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it would rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account the Form 1 offences. 25 Ms Francis' complaint is that, in assessing the gravity of the first count, his Honour has effectively indulged in double counting. Not only did he have regard to the offence involving the money on the Form 1, he also increased the sentence otherwise appropriate by 12 months to take account of the Form 1 matters. While it may have been open to his Honour to have done one or other of those things, she argued, to do both was to fall into error. 26 In my view, this argument is not supported by a careful reading of his Honour's remarks. True it is that in the first of the passages quoted above his Honour appears to be saying that all the offences, that is, the two charges on the indictment and the Form 1 matters, together indicate "drug activity" by the applicant. However, from the second quoted passage it is clear enough that his Honour had regard only to the goods in custody involving the money in assessing the objective gravity of the offence of supplying methylamphetamine. When it came to determining the sentence for that offence it was necessary to have regard to all of the matters on the Form 1, comprising not only other drug offences but also the goods in custody relating to the DVD player and other items and the receiving of the stolen motor vehicle. The totality of those offences called for a significant increase of the sentence appropriate for the first count standing alone, and it cannot be said that an increase of 12 months was outside the bounds of the proper exercise of discretion. 27 This ground is not made out.

Non-parole period 28 His Honour did not find special circumstances, noting that there had been no submission that he should. On each count, the non-parole period is 75 % of the sentence. However, as I have said, the overall sentence is 4 years and 8 months with an effective non-parole period of 3 years and 9 months. That effective non-parole period, in round figures, is 80 % of the aggregate sentence. 29 Such a proportion, is, of course, permissible but it is likely that it is not what his Honour intended: cf. R v Attard [2004] NSWCCA 376, per Buddin J (with whom Giles JA and Smart AJ agreed) at [21]-[22]. The result is a custodial component of 3 years and 9 months with a period of parole eligibility of only 11 months. While his Honour was not asked to find special circumstances in the light of the applicant's subjective case, the accumulation of sentence was itself a reason to adjust the non-parole period in respect of one of the sentences to achieve an overall proportion of 75 %. The effective non-parole period would then become 3 years and 6 months. Such an adjustment, while relatively minor, cannot be said to be insignificant. 30 I would achieve that result by dividing the sentence on the first count, 3 years and 8 months, into a non-parole period of 2 years and 6 months and a balance of term of 1 year and 2 months. Accordingly, I would grant leave to appeal and allow the appeal against the sentence on the first count. I would confirm the sentence on the second count. On the first count, I would sentence the applicant to a non-parole period of 2 years and 6 months, to commence on 23 December 2006 and expire on 22 June 2009, and a balance of term of 1 year and 2 months, commencing on 23 June 2009 and expiring on 22 August 2010. **********

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