Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/161931
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 20 April 2015
Before: Toner SC DCJ
File Number(s): 2014/161931
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Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant pleaded guilty to one offence of supply a prohibited drug (methylamphetamine) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 15 years. The commission of this offence breached two 12 month Local Court s 9 bonds imposed for shop lifting and custody of a knife. These bonds were called up and dealt with in the District Court with the supply offence.
The matter proceeded before Toner SC DCJ on 13, 22, 23 and 29 April 2015. On 29 April 2015 his Honour sentenced the applicant to imprisonment with a non-parole period of 18 months, backdated to commence on 28 February 2015 with a balance of term of 6 months. The s 9 bonds were dealt with by way of a conviction and no further penalty pursuant to s10A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).
The applicant was in custody, serving sentences imposed by the Local Court for a number of other offences from 29 May 2014 until 9 April 2015. The effect of his Honour backdating the commencement date of the sentence for this offence to 28 February 2015 meant that the effective non-parole period when one combined all of the sentences was 2 years and 3 months with a total term of 2 years and 9 months.
Wiseman v R [2016] NSWCCA 61 | Case summary | Zoe
The applicant relies upon a single ground of appeal.
Ground 1 - The sentencing judge failed properly to consider the issue of special circumstances in the context of partially accumulating the sentence upon those sentences being served.
FACTUAL BACKGROUND
On 29 May 2014 police were advised that a man was passed out in a parked vehicle in the car-park at Nobby's Beach, Port Macquarie. Police attended and located the applicant at about 6.15am slumped behind the wheel of the car in the driver's seat with the headlights on and the engine running. The applicant did not respond to police tapping on a window so they opened the driver's door and were able to rouse him. There was a glass pipe on the passenger seat. The applicant appeared drug affected and admitted that he had been consuming illicit drugs. The police told the applicant that they intended to search both him and his car.
As he was being searched, the applicant removed an item from his pocket and placed it in his mouth. Police tried to remove the item from the applicant's mouth causing him to violently resist. The applicant refused to spit the object out and tried to swallow it. He was handcuffed, and an ambulance was called.
The applicant continued to refuse to remove the item from his mouth, and was taken to hospital where a doctor eventually removed it. The item was examined by police and found to be an oval container with two plastic bags both containing white granules. The substance was examined and found to be 14.54 grams of methylamphetamine with a purity of 79.5%.
The applicant was discharged from hospital and taken to the police station and entered into custody. The applicant made admissions during an electronically recorded interview regarding possession of the drug. He told police that he had purchased the drug in the Newcastle area for $4000.
Proceedings in District Court
The primary judge found that the applicant had pleaded guilty at the earliest opportunity and was entitled to a 25% discount on sentence.
In relation to objective seriousness, the primary judge noted the quantity of drugs involved and their purity. His Honour found that while those matters were not determinative, they were relevant to the objective seriousness of the offending. In that regard his Honour noted that the indictable quantity of that drug is 5 grams and the trafficable quantity is 3 grams so that this was a deemed supply offence. His Honour took into account as a matter of aggravation that the applicant was subject to two s 9 bonds at the time of the offence.
In relation to subjective matters his Honour took into account that the applicant had a very extensive criminal history. His Honour said:
"Clearly this man has been using drugs all of his adult life. He has been given every opportunity to do something about it and none of it has been effective.
I have the advantage of a pre-sentence report which describes just that, and a report from Dr First which really confirms that he is a drug addict. Dr First makes diagnoses of substance use disorder, methylamphetamine dependence and opioid dependence and a drug-induced psychotic mood disorder which in layman's terms simply translates into drug addict.
There are no special circumstances in this man's case. He was in a long term relationship and perhaps what generated his collapse on this occasion was the fact that [the] relationship was falling to pieces, but had fallen to pieces because he had taken up with a younger woman and apparently that had fallen to pieces on him as well.
This man's criminality is of his own doing. Time is up. He is now 37. He should be of an age where he knows better. Unless he does something about his drug use you would not be much longer for this world." (Sentence judgment 2.7 - 3.3)
His Honour set out the sentence which he proposed to impose. The only outstanding matter was the commencement date for the sentence. In that regard, his Honour noted that there were other matters which had been dealt with in the Local Court which did not appear on his criminal history. The circumstances in which those sentences were imposed and the commencement date for those sentences were not clear. His Honour adjourned the matter so that he could be provided with information about those sentences. With the benefit of that information and after further submissions, his Honour backdated the commencement date for the sentence to 28 February 2015. His Honour's reasons were given ex tempore.
Applicant's submissions
The applicant submitted that s 44(2) of the Sentencing Act did not permit the parole period to exceed one-third of the non-parole period unless special circumstances were found. In the sentence proceedings, he sought a finding of special circumstances based on his drug addiction and need for rehabilitation but this submission had been rejected. In that regard, the applicant accepted that while it was open to the primary judge to find special circumstances, he did not err in refusing to do so.
The thrust of the applicant's complaint was not his Honour's refusal to find special circumstances but that his Honour's remarks on sentence had no regard to the effect of accumulation upon the overall ratio of the effective non-parole period of his sentence to the total term of imprisonment which he was required to serve.
On that issue the applicant noted that as a result of the sentences imposed on him in the Local Court, he went into custody on 29 May 2014 and was not due to be released until 9 April 2015 at the earliest. He submitted that when one added to those sentences, the sentence which the primary judge imposed for the supply offence, the total non-parole period would be 2 years and 3 months with a balance of term of 6 months, i.e. the ratio of the non-parole period to the overall sentence would be 81.5%. While accepting that s 44(2) allows for the balance of term to be less than one-third of the non-parole period, the applicant submitted that the failure of the primary judge to address the impact of the partial accumulation upon the affected non-parole period suggested that the impact was overlooked.
The applicant relied upon the judgment of Hidden J (with whom Whealy JA and Johnson J agreed) in Luke Nathan Richard Barrett v R [2011] NSWCCA 213. There Hidden J held that because an offender was already serving sentences for other matters, the effect of accumulation of a further sentence needed to be taken into account:
"29 It is well established that accumulation of sentence, whether by reference to sentences passed on one occasion or to a sentence which the offender is already serving, is a basis for a finding of special circumstances. Equally, it is well established that whether special circumstances are found for that reason is a matter for judgment in each case. Certainly, there is not a general requirement that the proportion between effective non-parole period and aggregate sentence should not exceed 75%. Nevertheless, where it does, one would expect the sentencing judge to articulate his or her reasons for doing so and, in the absence of such reasons, the inference might be drawn that the practical effect of the accumulation was overlooked: R v Nightingale [2005] NSWCCA 147, per Tobias JA (with whom Buddin and Hall JJ agreed) at [39] - [46]."
The applicant submitted that the absence of express reasons by the primary judge for imposing an effective non-parole period significantly in excess of the statutory ratio was indicative of error. The applicant submitted that the error could be corrected by varying the existing non-parole period to 1 year and 3 months. Alternatively, the applicant submitted that because error in the sentencing process had occurred, the Court could proceed to re-sentence on the basis that a lesser sentence was warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).
Consideration
The other sentences imposed by the Local Court commencing 29 May 2014 and expiring 9 April 2015 related to four larceny offences, two goods in custody offences, four offences of possessing a prohibited drug and one offence of being in possession of suspected proceeds of crime. Some of those sentences were fully or substantially concurrent. The sentence in this matter was partially accumulated on those sentences. The applicant's submissions overlook the extensive and repeated discussions between the primary judge and the applicant's legal representative during the sentencing proceedings on 22 and 29 April 2015 regarding an appropriate starting date for sentence for the supply offence in the light of these previous terms of imprisonment. The principle of totality in the context of the accumulation of sentences was also discussed. His Honour was clearly aware of the fact of the partial accumulation and its effect on the existing sentences. It cannot be said that this was overlooked by his Honour.
One of the issues before his Honour was whether the sentence which he was going to impose for the supply offence should be fully or partially accumulated. On that issue, his Honour rejected the submission by the Crown by making the sentence for this matter partially accumulated.
When giving effect to totality, due to the partial accumulation of sentences, the primary judge was not obliged to reduce the current sentence so that it resulted in an effective non-parole period of 75% of the total head sentence. Section 44(2) of the Act does not require such an adjustment. It is also clear that his Honour was mindful of the overall effect of the sentence that he imposed, given that the proceedings were adjourned in order for the Crown to obtain an up to date criminal record showing the dates of the previous sentences. There were lengthy interchanges with the applicant's legal representative and his Honour on this issue.
Finally, the sentencing judge was obliged to impose a sentence which appropriately reflected the overall criminality of the offending. To have increased the level of concurrency would not have achieved this purpose. The sentence which his Honour imposed had to observe the principle of totality. His Honour was fully aware of this which is why he made this sentence partially concurrent with the earlier sentences. In the circumstances of this case it would have been open to his Honour to wholly accumulate the sentence on the last of the parole periods. His Honour declined to do so in accordance with the submissions of the applicant's legal representative. His decision to impose the sentence which he did was a fully considered one.
No error has been demonstrated in his Honour's exercise of the sentencing discretion. Accordingly, the order which I propose is that leave to appeal be granted but that the appeal be dismissed.
HARRISON J: I agree with Hoeben CJ at CL.
SCHMIDT J: I agree with Hoeben CJ at CL.
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Decision last updated: 26 April 2016