Zocchi v The Queen

THE COURT 1 This is an application for an extension of time to appeal against sentences imposed by a judge of the Australian Capital Territory on 16 October 1996. Mr Zocchi was convicted by the jury, at a trial on indictment, of armed robbery and intentional wounding. A sentence of imprisonment for four years was imposed in respect of the armed robbery, together with two years, to be served concurrently, in respect of the intentional wounding, which was inflicted during the robbery. As he was already serving other terms of imprisonment for earlier offences, it was necessary to take account of these. It was ordered that the terms of four years and two years were to commence at the expiry of the then current sentences, and a non-parole period of ten years from 21 June 1994 was set. 2 The fixing of a non-parole period the commencement of which was back-dated to 21 June 1994 is to be explained by the judge's concern to take proper account of the punishment inflicted on Mr Zocchi for the earlier offences. On 21 June 1994, he had been sentenced, for a crime of robbery involving the infliction of actual bodily harm, to a term of three years' imprisonment, to commence on the expiration of earlier sentences, with a non-parole period to expire on 29 July 1995. 3 Mr Zocchi's application for extension of time was filed on 12 February 1997. An affidavit in support explained the delay up to that point by showing that he had given prompt instructions to a solicitor to lodge an appeal, but had been advised about 30 October 1996 that the solicitor had not accepted those instructions. He had attempted to lodge an appeal in person by facsimile transmission from Goulburn gaol, but the facsimile had been rejected. He had then sought legal aid to lodge an appeal, but on 23 December 1996 he was stabbed seventeen times and taken to hospital. He remained effectively hospitalized throughout 1997. 4 In the circumstances, provided there is an arguable question, the delay before the lodgment of the application is not beyond excusing. It should not be overlooked that the applicant's difficulties are compounded by illiteracy. The greater difficulty is the extreme delay in the prosecution of the matter thereafter. But a year of this time is explained by the severe injuries suffered by Mr Zocchi, and further delays were apparently due to his own misunderstanding of the law and failure to obtain legal assistance. He seems to have confused an appeal on all grounds with an appeal against sentence. When he addressed this Court, it became clear his real focus was on the sentence he received, viewed as a significant addition to the incarceration he had previously incurred. Had his application been put in order through a solicitor, as an application to enable him to appeal against sentence, it could have been listed for hearing and disposed of long ago. In this situation, provided (as has been said) there is an arguable point, we would extend the time, despite the delay. An appeal against sentence would not prejudice the Crown, and the Court's power to extend time is a flexible one, designed to enable substantial justice to prevail over technical default: Jess v Scott (1986) 12 FCR 187. 5 If this case stood alone, there could be no valid argument against the effective sentence of four years. The offences are serious, and this sentence is well within the permissible range. The real question is as to the application of the totality principle, having regard to the earlier sentences. In McDonald v The Queen (1994) 48 FCR 555 at 563, it was said by Burchett and Higgins JJ (with whom Spender J expressed general agreement): "As was emphasised by the Court of Appeal in R v Bocskei (1970) 54 Cr App R 519 at 521, 'the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive'. See also R v Holder [1983] 3 NSWLR 245 at 260, per Street CJ. The principle applies just as much to the effective non-parole period fixed in respect of a series of consecutive sentences as to the total of the sentences. That this is so is made plain by the joint judgment of the Full Court of the Supreme Court of Victoria (McInerney, Menhennitt and McGarvie JJ) in R v Tutchell [1979] VR 248 at 252-253. The principle of totality is discussed in some detail in D A Thomas, Principles of Sentencing (2nd ed, 1979) at pp 56-61 and in R G Fox and A Freiberg, Sentencing State and Federal Law in Victoria (1985), pp 372-373, 375, and was approved by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62-63, where a key passage from Thomas's work was adopted in the judgment of the Court. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved. The principle applies to the later of two courts, whether or not within the same jurisdiction, where the sentences are imposed by different judges: R v MacDonald (1990) 52 A Crim R 349 at 351-352. Any other approach may easily be exposed as wrong by a reductio ad absurdum. It could not be right, in a case involving 50 minor offences, each warranting a sentence of one year, to inflict as punishment a period of 50 years in gaol, just because consecutive sentences were required by the relevant principles of law, applied without modification." 6 To apply the totality principle here, it was necessary for the sentencing judge to know just what the position was with regard to Mr Zocchi's earlier sentences. His Honour seems, at the time of sentencing the applicant, to have understood the prior sentences would expire about 16 May 2003, and bearing that in mind, he imposed the sentences with which we are concerned "to commence at the expiry of the sentences [Mr Zocchi was] now serving", and then fixed a non-parole period which would not expire before 21 June 2004. A serious problem with this approach to the matter is the lack of clear and detailed evidence. It appears the Crown obtained what information it could from the NSW Prisons Department, as there had been lengthy prison terms imposed in that State which were subject to drastic reduction under legislation affecting the time actually required to be served. The material produced to this Court, as being the evidence before the sentencing judge, reflects calculations made out of court and summaries of orders made in NSW courts. In our opinion, a sentence that must take account of the totality principle should not be imposed without evidence clearly establishing the term or terms of imprisonment, served and to be served, for which allowance has to be made. It is of the utmost importance that, where a person who is to be sentenced is already serving a previous sentence, a copy of the actual order imposing that previous sentence, and any administrative decision affecting its duration, should be made available to the sentencing judge. The Court should not be asked to impose a sentence on the basis of a second-hand summary of what is said to be the effect of the documents. 7 After this application had proceeded some distance, however, there was an adjournment, following which the Crown put before the Court the appropriate material, and assured the Court that this material had in fact been provided to the sentencing judge. However, it was not presented to his Honour as clearly as it was to us, and his understanding that the prior sentences would expire about 16 May 2003 was incorrect. We were informed by the learned prosecutor that the misinformation was noticed the next day, but by then the applicant had already been sentenced and the orders were not varied. 8 It appears from the material provided that, as at 16 October 1996, the applicant had 7 years 3 months and 17 days to serve of the then current head sentence, that is to say, it was due to expire at 1 February 2004. The effect of the concurrent sentences of 4 years for armed robbery and 2 years for wounding, when added to the balance unexpired of the existing sentences, was to create an unexpired head sentence of 11 years 3 months and 17 days from that date (to expire 1 February 2008). That head sentence, even having regard to the seriousness of those offences in the context of the remaining portions of the previous sentences, seems to us excessive having regard to the totality principle. It is an extremely severe consequence to be incurred by the applicant's conduct, grave though his crimes were. 9 In our view, part of the effective sentence of four years imposed by the judge, which in itself is unexceptionable, should be made concurrent with the prior sentences. That is the accepted and appropriate way in which to reflect the totality principle: McDonald v The Queen at 565; Mill v The Queen (1988) 166 CLR 59 at 63. We would order that this sentence commence two years prior to the expiry of the previous sentences, so that the first two years would be concurrent with those sentences. It follows that the head sentence will now expire on 1 February 2006. The non-parole period should be similarly reduced so as to expire on 21 June 2002, ie 8 years from 21 June 1994. 10 Counsel for the Crown drew our attention to the decision of this Court in R v Hillsley (1992) 34 FCR 148, which held that s 443 of the Crimes Act 1900 (ACT), as it then stood, did not permit the partial accumulation of sentences. However, s 443 was extensively amended following that decision by the Crimes (Amendment) Act (No 2) 1993 (ACT), with effect from 22 October 1993. We are satisfied the amendments authorize the orders we propose. 11 Accordingly, the application to extend the time for appeal should be allowed to the extent required to enable the applicant to appeal against the sentences imposed on him, and the appeal should be determined instanter and allowed to the extent we have stated. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.