Aiken v The Queen

[2011] NSWCCA 208

Court of Criminal Appeal

New South Wales

Case Title:	Aiken v R
Medium Neutral Citation:	[2011] NSWCCA 208
Hearing Date(s):	5 August 2011
Decision Date:	09 September 2011
Jurisdiction:
Before:	McClellan CJ at CL at [1] Simpson J at [22] Fullerton J at [23]
Decision:	1. Grant leave to appeal. 2. Uphold the appeal and quash the sentences imposed in the District Court. 3. Sentence the applicant as follows: Count 7: a fixed term of 6 months commencing on 16 October 2008 and expiring on 15 April 2009. Count 6: a fixed term of 12 months commencing on 16 October 2008 and expiring on 15 October 2009. Count 1: a fixed term of 2 years 9 months commencing on 16 January 2009 and expiring on 15 October 2011. Count 2: a fixed term of 3 years commencing on 16 April 2009 and expiring on 15 April 2012. Count 5: a fixed term of 2 years 3 months commencing on 16 July 2010 and expiring on 15 October 2012. Count 3: having regard to the matters on the Form 1 a non-parole period of 3 years commencing on 16 October 2010 and expiring on 15 October 2013 with an additional term of 2 years expiring on 15 October 2015. Count 8: a fixed term of 12 months commencing on 16 October 2010 and expiring on 15 October 2011. Count 9: a fixed term of 6 months commencing on 16 October 2010 and expiring on 15 April 2011.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - drug supply offences - Form 1 offence possession of mobile telephone whilst in custody without reasonable excuse - offences committed whilst applicant serving prison sentence - plea of guilty - effective sentence backdated to commence at expiry of parole period of earlier sentence - no order for revocation of parole made - period of custody solely referrable to present offences - error established - inconsistency between individual sentences imposed - relative quantities involved in each count - sentences for affected individual counts wholly subsumed by other sentences - adjustments to individual sentences - parity - intervention of the Court not justified - leave granted - sentences quashed - applicant re-sentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Summary Offences Act 1988 (NSW)
Cases Cited:	Callaghan v The Queen (2006) 160 A Crim R 145 Postiglione v The Queen (1997) 189 CLR 2 R v Ellmore [2002] NSWCCA 242 R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
Texts Cited:
Category:	Principal judgment
Parties:	Luke Matthew Aiken (Applicant) Regina
Representation
- Counsel:	Counsel S Buchen (Applicant) S Bowers (Crown)
- Solicitors:	Solicitors The Law Practice (Applicant) Solicitor for Public Prosecutions (Crown)
File number(s):	2009/2592
Decision Under Appeal
- Court / Tribunal:
- Before:	O'Connor DCJ
- Date of Decision:	14 December 2009
- Citation:	N/A
- Court File Number(s)	2009/2592
Publication Restriction:

Judgment

1. McCLELLAN CJ at CL: Luke Aiken pleaded guilty to 8 counts relating to various drug offences. In addition he asked that an offence of possessing a mobile telephone in custody without reasonable excuse contrary to s 27DA(1) of the Summary Offences Act 1988 (NSW) (which was count 4 on the indictment) be taken into account on a Form 1 when sentenced for count 3. The offences were all committed while the applicant was serving a prison sentence for earlier offences. The various offences, maximum penalty and sentence are set out in the table which follows:

Offence	Maximum Penalty	Sentence
1. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 56g of methylamphetamine between 1 and 10 March 2008	15 years imprisonment or 2000 penalty unit fine or both	Fixed term: 3 years 6 months From: 16 July 2009 Expires: 15 January 2013
2. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 112g of methylamphetamine between 10 and 18 March 2008	15 years imprisonment or 2000 penalty unit fine or both	Fixed term: 4 years From: 16 October 2009 Expires: 15 October 2013
3. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 164.4g of methylamphetamine between 14 and 20 April 2008	15 years imprisonment or 2000 penalty unit fine or both	Non-parole period: 3 years From: 16 April 2011 Expires: 15 April 2014 Additional term: 2 years Expires: 15 April 2016 Form 1: Possession of a mobile phone in custody without reasonable excuse: s 27DA(1) Summary Offences Act 1988
5. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 27.24g of methylamphetamine on 29 May 2008	15 years imprisonment or 2000 penalty unit fine or both	Fixed term: 3 years From: 16 January 2011 Expires: 15 January 2014
6. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply 3.5g of methylamphetamine on 2 March 2008	15 years imprisonment or 2000 penalty unit fine or both	Fixed term: 12 months From: 16 April 2009 Expires: 15 April 2010
7. Knowingly take part in the supply of a prohibited drug (cannabis, less than the prescribed "small quantity" of 30g applicable to that drug): ss 25(1) and 32(1)(h) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 14g of cannabis leaf on 2 March 2008	10 years imprisonment or 2000 penalty unit fine or both (Summary disposal: 2 years imprisonment or 50 penalty unit fine or both: s 30 of the Drug Misuse and Trafficking Act 1985)	Fixed term: 6 months From: 16 April 2009 Expires: 18 October 2009
8. Knowingly take part in the supply of a prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 7.1g of methylamphetamine on 19 April 2008	15 years imprisonment or 2000 penalty unit fine or both	Fixed term: 12 months From: 16 April 2011 Expires: 15 April 2012
9. Knowingly take part in the supply of a prohibited drug (cannabis, less than the prescribed "small quantity" of 30g applicable to that drug): ss 25(1) and 32(1)(h) of the Drug Misuse and Trafficking Act 1985 Particulars: supply of 17.1g of cannabis leaf on 19 April 2008	10 years imprisonment or 2000 penalty unit fine or both (Summary disposal: 2 years imprisonment or 50 penalty unit fine or both: s 30 of the DMT Act )	Fixed term: 6 months From: 16 April 2011 Expires: 15 October 2011

1. The effective sentence received by the applicant was a total of 7 years imprisonment comprised of a non-parole period of 5 years and an additional term of 2 years. The sentence was structured in the following manner:

The fixed terms imposed for counts 6 and 7 were made concurrent with one another (commencing on 16 April 2009);
The fixed term imposed for count 1 was partially accumulated upon the sentences for counts 6 and 7 by 3 months (commencing on 16 July 2009);
The fixed term imposed for count 2 was partially accumulated upon the sentence for count 1 by 3 months (commencing on 16 October 2009);
The fixed term imposed for count 5 was partially accumulated upon the sentence for count 2 by 1 year and 3 months (commencing on 16 January 2011);
The non-parole period for count 3 was partially accumulated upon the sentence for count 5 by 3 months (commencing on 16 April 2011);
The fixed terms imposed for counts 8 and 9 were made concurrent with the sentence for count 3 (also commencing on 16 April 2011).

1. The applicant seeks leave to raise three grounds of appeal, two of which are effectively conceded by the Crown. The third raises considerations of parity with the sentence imposed on a co-offender.

1. The grounds are as follows:

Ground 1: The learned sentencing judge erred by backdating the applicant's sentence to commence after the expiry of the parole period of an earlier sentence of imprisonment.

Ground 2: The applicant's sentence is indicative of error in that individual sentences passed upon him are inconsistent with one another.

Ground 3: The applicant has a legitimate sense of grievance when the individual sentences he received for counts 1, 2, 3 and 5 are compared with corresponding or relevant individual sentences imposed upon his co-offender Adam Aiken.

1. The effective sentence was backdated to commence on 16 April 2009. That date was fixed by reference to the expiry date of the parole period for an earlier sentence of imprisonment which the applicant was serving when he committed the offences. The date is the subject of the first ground of appeal. It was submitted that it was an error to backdate the effective sentence to commence after the expiry of an earlier parole period in circumstances where the applicant was eligible for release to parole and no decision to deny him parole was made.

1. The Crown accepts the legitimacy of this complaint for it effectively results in the applicant being punished twice for the later offence. The issue was considered by this Court in R v Ellmore [2002] NSWCCA 242. A sentencing court is required to take into account any time which an offender has been held in custody in relation to the offence or offences for which he or she is to be sentenced: ss 24 and 47(3) of the Crimes (Sentencing Procedure) Act 1999. A sentencing judge retains a discretion as to whether or not a sentence should be backdated to commence on a date prior to the expiry of a parole period of an earlier sentence when an offender's parole has been revoked ( Callaghan v The Queen (2006) 160 A Crim R 145). However, it is erroneous to backdate a sentence to commence on a date prior to the expiry of a parole period of an earlier sentence, in circumstances where an offender's parole has not been revoked.

1. As it happened the applicant's custody after 16 October 2008 was solely referrable to the present offences. He was eligible for release to parole on that date. No order for revocation of parole was made by the Parole Board in relation to the earlier period of custody. It was appropriate for the sentencing judge to have regard to the fact that the offences were committed during a period of incarceration as an aggravating feature but otherwise the sentence ought to have been commenced on 16 October 2008. In my judgment this Court must re-sentence to have regard to this issue.

1. The second ground of appeal concerns the individual sentences. It was firstly submitted that the sentences are inconsistent with one another and secondly that the sentencing judge erred by imposing fixed terms that were not the equivalent of minimum terms.

1. The sentencing judge found that count 3 was the most serious offence for which the applicant was to be sentenced. This count involved the greatest quantity of drugs (164.4 g of methylamphetamine) and the Form 1 matter was considered with this count. The sentence imposed was a total term of imprisonment of 5 years with a non-parole period of 3 years. However, in relation to counts 1 and 2 a fixed term was imposed which was greater than the non-parole period for count 3. The fixed term for count 5 was the same as the non-parole period for count 3.

1. The distinguishing feature between each count was the amount of drug involved. The applicant submitted that because the amounts of drug involved for counts 1, 2 and 5 were significantly less than for count 3 an error has occurred.

1. The Crown responded to this ground of appeal by emphasising that this Court is concerned with errors which have been previously described as "material errors". This expression was discussed by Latham J in Baxter v R (2007) 173 A Crim R 284 (especially [83]-[84]). The Crown accepts that the sentences for counts 2 and 5 are "too high" compared with the sentence for count 3 which was determined to be the most serious of the offences. However, it was submitted that, as the individual sentences for those counts are fully subsumed by the sentences imposed for other offences, the error is of such a technical nature that it could not have affected the sentencing discretion (see R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at [30]).

1. It was submitted that the position in relation to count 1 was similar although it was argued that for that count there was a discrete but short period of incarceration. I do not believe this to be correct. My understanding is that the sentence for count 1 is wholly subsumed in the sentence for other counts.

1. As it happens it is necessary for this Court to re-sentence. I will in that process re-sentence for the individual offences. It seems to me that his Honour intended that the fixed terms should represent the entire sentence for each of counts 1, 2 and 5. If the individual sentences are altered so that the fixed term is the non-parole period which would have been applicable to that sentence the individual sentences will be appropriate. As I discuss below I do not propose to alter the length of the total non-parole period or overall sentence. Apart from the submission made in relation to ground 3 it was not submitted that the total sentence was excessive.

1. The final ground of appeal was that the sentences received for counts 1, 2, 3 and 5 compared with the corresponding sentences received by the co-offender Adam Aiken were excessive.

1. The co-offender Adam Aiken was sentenced by the same judge. His Honour found Adam Aiken to be the "head of the syndicate" and its "chief distributor" while the applicant occupied the lower role of "facilitator".

1. The sentencing judge accordingly concluded that Adam Aiken should receive a more severe penalty than the applicant. His Honour reached this conclusion having regard to Adam's position in the hierarchy, the fact that he distributed a greater total quantity of drugs than the applicant, pleaded guilty to the more serious offences of commercial supply, pleaded guilty to additional offences and had a more serious criminal record. Adam Aiken was sentenced as follows:

Count 1: supply commercial quantity of methylamphetamine (280g), taking into account a Form 1 schedule with a further 280g commercial supply of the same drug: non-parole period of 5 years with an additional term of 3 years;
Count 2: supply of 161.6g of methylamphetamine: fixed term of 3 years;
Count 3: supply of 164.4g of methylamphetamine, taking into account a Form 1 schedule with a further 7.1g supply of the same drug: fixed term of 3 years 6 months (the 164.4g supply is the subject of the applicant's count 3; the Form 1 matter is the subject of the applicant's count 8);
Count 4: supply commercial quantity of methylamphetamine (362.6g), taking into account a Form 1 schedule with 3 further supply offences (27.24g of methylamphetamine, 3.5g of methylamphetamine, 14g of cannabis leaf) and a deal with proceeds of crime offence: non-parole period of 5 years with an additional term of 2 years 6 months (the three supply matters on the Form 1 are the subject of the applicant's counts 4, 8 and 9 respectively);
Count 5: supply of 112g of methylamphetamine, taking into account a Form 1 schedule with a further 56g supply of the same drug; fixed term of 3 years 6 months (the 112g supply is the subject of the applicant's count 2; the Form 1 matter is the subject of the applicants count 1).

1. The total sentence for Adam Aiken was an effective non-parole period of 8 years with a total term of 11 years.

1. The applicant submitted that having regard to the principles discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 at [301] he has a legitimate sense of grievance when the following comparisons are made:

The applicant was sentenced to a fixed term of 4 years for taking part in the 112g supply (count 2), while Adam Aiken was sentenced to a lower fixed term of 3 years and 6 months for the same supply (Adam's count 5). The disparity in this instance was said to be heightened by the circumstance that Adam's sentence took into account a Form 1 schedule which contained a further 56g supply (the applicant's count 1).

The applicant was sentenced to a non-parole period of 3 years for taking part in the 164.4g supply (count 3) while Adam was sentenced to a fixed term of 3 years and 6 months for the same supply (Adam's count 3). Adam's sentence took into account a Form 1 schedule which contained a further 7.1g supply (the applicant's count 8). Although Adam's fixed term was marginally higher than the applicant's non-parole period, it was submitted that due allowance was not made for the findings concerning the co-offender's more serious criminality, leaving the applicant with a legitimate sense of grievance.

The applicant was sentenced to a fixed term of 3 years 6 months for taking part in the 56g supply (count 1), while Adam was sentenced to fixed terms of the same duration for: (1) the more serious 112g supply (Adam's count 5), which took into account the same 56g supply on a Form 1 schedule; (2) the more serious 164.4g supply (Adam's count 3).

The applicant was sentenced to a fixed term of 3 years for taking part in the 27.24g supply (count 5), while Adam was sentenced to a fixed term of the same duration for the more serious 161.6g supply (Adam's count 2).

1. It is apparent from the sentencing judge's remarks when he sentenced Adam Aiken that he was conscious of the parity principle. His Honour also makes plain that he was conscious of the differences between the two offenders, which included the manner in which each was charged. Because each offender was being sentenced in relation to multiple offences, but were co-offenders on only some but not all of the offences there is limited if any value in attempting to compare the sentences passed on each offender for the same offence. Considerations of totality will inevitably influence the individual sentences and the degree of concurrency and accumulation which may be appropriate.

1. I have already indicated that I propose to make adjustments to individual sentences. When those adjustments are made I am not persuaded that the differences in the sentences for each of the offenders is so marked or glaring as to justify the intervention of this Court. Although Adam Aiken's offending was, by reason of the quantity and number of offences, serious the applicant committed his offences whilst in custody for previous offences which significantly aggravated his offending.

1. The orders I propose are as follows:

1. Grant leave to appeal.
2. Uphold the appeal and quash the sentences imposed in the District Court.
3. Sentence the applicant as follows:

Count 7: a fixed term of 6 months commencing on 16 October 2008 and expiring on 15 April 2009.
Count 6: a fixed term of 12 months commencing on 16 October 2008 and expiring on 15 October 2009.
Count 1: a fixed term of 2 years 9 months commencing on 16 January 2009 and expiring on 15 October 2011.
Count 2: a fixed term of 3 years commencing on 16 April 2009 and expiring on 15 April 2012.
Count 5: a fixed term of 2 years 3 months commencing on 16 July 2010 and expiring on 15 October 2012.
Count 3: having regard to the matters on the Form 1 a non-parole period of 3 years commencing on 16 October 2010 and expiring on 15 October 2013 with an additional term of 2 years expiring on 15 October 2015.
Count 8: a fixed term of 12 months commencing on 16 October 2010 and expiring on 15 October 2011.
Count 9: a fixed term of 6 months commencing on 16 October 2010 and expiring on 15 April 2011.

1. SIMPSON J: I agree with McClellan CJ at CL.

1. FULLERTON J: I agree with McClellan CJ at CL.

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I certify that this and the preceding 12 pages are a true copy of the reasons for judgment herein of the Honourable Justice McClellan CJ at CL and of the Court

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Associate

Date: