Brazier v The Queen - [2002] WASCA 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BRAZIER -v- THE QUEEN [2002] WASCA 278

CORAM: MALCOLM CJ
WALLWORK J
FITZGERALD AJ

HEARD: 6 AUGUST 2002

DELIVERED : 10 OCTOBER 2002

FILE NO/S: CCA 31 of 2002

BETWEEN: MICHAEL BRAZIER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedures - Sentencing - Attempting to possess a prohibited drug with intent to sell or supply - 499 grams of cocaine - Sentence of 4 years cumulative on sentence of 41/2 years for previous drug offence - Disparity - Sentence manifestly excessive when compared with sentence imposed on cooffender as wholesaler when applicant was a distributor - Sentence reduced by directing that 3 years of the sentence of 4 years be served cumulatively upon the sentence the applicant was serving as of 10 October 2001

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33

Sentencing Act 1995 (WA), s 87, s 94

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Applicant: Mr L M Levy
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jarvis v The Queen (1993) 20 WAR 201
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Olbrich [1999] HCA 54
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 22 February 2002, the applicant applied for leave to appeal against the sentence of imprisonment for 4 years imposed upon him by Roberts‑Smith J in the Supreme Court on 1 February 2002. On 10 October 2001, the applicant was convicted on his plea of guilty to count (4) on an indictment of attempting to possess a prohibited drug, namely cocaine, with intent to sell or supply to another contrary to s 6(1)(a) and s 33 of the Misuse of Drugs Act 1981 (WA). The sentence imposed was ordered to be served cumulatively upon any other sentence the applicant was already serving. An order was made that he be eligible for parole. The application was made on the following grounds:
"1.The learned sentencing Judge erred by finding that the applicant was attempting to possess 499 grams of cocaine as opposed to 14 grams of cocaine.
2.In the alternative to ground 1, the learned sentencing Judge erred by finding that the appropriate starting point for the offence, absent any mitigating features, was a sentence of 9 years imprisonment.
3.The learned sentencing Judge erred by failing to properly apply the totality principle."
At the hearing of the application the applicant was granted leave to amend the grounds by the deletion of ground 1 and to add two further grounds as follows:
"4.The Learned Sentencing Judge erred by failing to properly apply the parity principle thereby giving rise to a justifiable sense of grievance on the part of the Applicant.
PARTICULARS
a)The Learned Sentencing Judge indicated the same starting point for sentenece (sic) (9 years) in respect of the Applicant's co‑accused, Anthony Pinkstone.
b)The Crown conceded that the Applicant should be regarded as 'below' Pinkstone for the purposes of sentencing
5.The Learned Sentencing Judge erred by failing to properly take into account the delay between the date that the Applicant pleaded guilty and the date that he was sentenced in circumstances that were not the fault of the Applicant and caused him significant prejudice."
The applicant was one of four persons jointly charged on an indictment dated 17 January 2001 which contained the following counts:
"(1)On 7 October 1999 at Perth Airport ANTHONY JOHN PINKSTONE supplied a prohibited drug, namely methylamphetamine, to another.
(2)AND FURTHER that on the same date and at the same place, WAYNE JOHN YANKO had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(3)AND FURTHER that on the same date and at the same place, ANTHONY JOHN PINKSTONE attempted to supply a prohibited drug, namely cocaine, to another.
(4)AND FURTHER that on the same date and at the same place, MICHAEL BRAZIER and PAUL PHILLIP BRAZIER attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another."
The Crown case was that Mr Pinkstone had attempted to supply the cocaine to the applicant and his brother Michael, who had attempted to obtain possession of it to sell or supply it to another. Both the methylamphetamine and the cocaine were sent by Mr Pinkstone to Perth from Sydney. Only the cocaine was for the applicant. The Crown alleged that the applicant had sent his brother, Paul Brazier, to Perth Airport on 7 October 1999 to collect the drugs on his behalf. The drugs, including the consignment for Yanko, were left in safety deposit boxes, which were in a combination safe. The combination was set by Pinkstone and was not known to the applicant. The quantity of cocaine involved was 499 grams.
All four accused elected a preliminary hearing following which they were all committed for trial in the District Court. The case was later transferred to the Supreme Court. The trial was originally set down for 10 weeks commencing on 2 October 2001. The applicant initially pleaded not guilty. There were numerous pre‑trial applications made by the other accused. The applicant made only one such application on 20 April 2001, which was for a separate trial. The application was filed on 20 April 2001, heard in May 2001 and refused by Roberts‑Smith J on 1 June 2001.
On 30 August 2001, the applicant indicated his intention to plead guilty to count 4 on the indictment. That plea was entered and the applicant duly convicted on 10 October 2001. As the trial of the three co‑accused was still pending, the sentencing of the applicant was deferred until after the trial. The trial ran for some 8 weeks. Pinkstone was convicted on counts 1 and 3 on the indictment and Yanko was convicted on count 2 of the indictment, but the jury were unable to agree on a verdict in respect of the applicant's brother in respect of count 4.
The maximum penalty for the offence of possession of cocaine as a prohibited drug with intent to sell or supply is imprisonment for 12‑1/2 years or a penalty of $50,000 or both, being one‑half of the maximum of 25 years or a fine of $100,000 or both for actual possession: see s 6(1)(a) and s 33(1) of the Misuse of Drugs Act.

Ground 2: Starting point excessive and Ground 4: Lack of parity

It is convenient to deal with these two grounds together.
It was contended on behalf of the applicant that the "starting point" adopted by the learned Judge in the order of 9 years was manifestly excessive, having regard to the quantity of the drug involved. In the context of lengthy, careful and detailed sentencing remarks, the learned Judge related the history of the proceedings and the evidence of National Crime Authority (NCA) operatives and their observations both in Western Australia and New South Wales, principally regarding the movements of Pinkstone. There was also extensive evidence of recorded telephone conversations intercepted under judicial warrant, together with physical evidence of drugs, packages and a large volume of documentary material. Both Pinkstone and Yanko gave evidence in their defence and called several witnesses.
In the light of the evidence given at the trial and after hearing submissions in relation to sentence, Roberts‑Smith J found that Pinkstone had an on‑going business relationship with the applicant pursuant to which he supplied the applicant with drugs for their future sale and distribution. It was accepted by counsel for the applicant that the relationship between Pinkstone and the applicant was appropriately characterised as that of wholesaler and distributor. In other words, the applicant was a principal and high up in the distribution chain. The Crown's contention was that he effectively provided the "gateway" to Western Australia for a significant amount of pure‑grade cocaine. In this respect the Crown relied upon the amount involved of about half a kilogram, 79 per cent pure, valued at in excess of $90,000. There was evidence that, at the retail or street level, the purity of the cocaine would be reduced to 15 per cent, representing a very significant amount which would be made available to end‑users. It was concluded that the cocaine supplied to the applicant was very close to the source from which it had been obtained by Pinkstone.
The Crown also relied on the sophisticated nature of the applicant's operation, including his use of telephones, one of which was a mobile telephone in a false name, the adoption of anti‑interception telephone techniques, the use of code in the telephone conversations with Pinkstone and the fact that he dealt with a person who engaged in drug dealing in a secretive and highly sophisticated manner. The Crown also maintained that the transcripts of the various telephone conversations to which the applicant was a party, suggested that he was representing himself as a skilled professional in the context of drug dealing. In his conversations with Pinkstone, the applicant criticised others on the basis that their dealings were not as professional as those between himself and Pinkstone. While there was evidence that there were other drug dealings between the two of them that came out during the trial of issues, Roberts‑Smith J accepted that the applicant was only to be sentenced for the offences of which he had been convicted. While it was accepted that the applicant was a user, it was contended that, on the evidence, he was also a significant dealer in illicit substances.
The Crown also accepted that in relation to the cocaine transaction, this was the first occasion on which arrangements were made for delivery by means of a safety deposit box in the manner described. This acceptance was based upon the evidence available to the Crown. A contention before the learned sentencing Judge that the applicant was not proposing to accept as much as 499 grams was rejected by his Honour.
It was accepted by the sentencing Judge that a discount for the plea of guilty was appropriate, taking into account the facts that it was very late, being some 2‑1/2 years after the applicant had been charged, although it was acknowledged that it saved the community some of the costs of the trial and was an indication of remorse on the part of the applicant. The Crown contended, however, that the plea of guilty was inevitable and the prosecution case overwhelming, so that the discount should be significantly reduced.
At the time he came to be sentenced, the applicant was already serving a sentence of imprisonment for a previous offence imposed by Kennedy DCJ in the District Court. In fact the applicant had a number of prior convictions. These included a conviction on 3 November 1992 of a series of drug offences in respect of which he was sentenced to imprisonment and released on parole on 21 August 1994 and was on parole until 19 August 1996 when the parole period expired. On 19 June 2000 he was convicted on his plea of guilty of assault occasioning bodily harm and threats to injure. This offence was committed on 18 February 1996 while he was on parole. He was convicted of further drug offences on 16 March 2000 and his current offence was committed while the applicant was on bail for those offences.
So far as the present offence is concerned, there was a trial of issues in relation to the applicant in relation to the quantity of the cocaine, the subject of the applicant's intention to sell or supply and the amount which was for personal use. The trial of issues took place on 15 January 2002. The findings made by the learned Judge were made on 17 January 2002. Two contentions were advanced on the part of the applicant at the trial of issues. The first was that the amount of cocaine he believed he was to receive from Pinkstone was approximately half an ounce or 14 grams, rather than the 499 grams actually sent. Secondly, it was contended by the applicant that he was a lower level distributor of the drug and not engaged in drug‑dealing activity as such with Pinkstone. As it happened, counsel for the applicant said that he did not intend to call any evidence on the applicant's behalf, but only to argue those contentions on the basis of the material contained in the Crown brief. As to this the learned Judge said:
"Having considered the content of the intercepted telephone calls, watched and listened to the police video record of interview with you on 13 October 1999 and considered the submissions made by Mr Levy and by Mr Vandongen [counsel for the Commonwealth DPP] I am satisfied beyond reasonable doubt and so find that you were well aware that the parcel you were to receive from Pinkstone on 7 October 1999 contained cocaine and that you believed or expected there to be about 1 pound of the drug in it and that is what you were attempting to possess with intent to sell or supply."
Mr Levy accepted that in the light of the High Court decision in R v Olbrich [1999] HCA 54 the learned trial Judge was correct when he told the applicant:
"… the onus was on you to establish on the balance of probabilities that you believed the parcel contained only half an ounce of cocaine and it submitted that I could not sentence you on the basis that you intended to possess the 499 grams actually in the parcel unless the Crown proved that knowledge or intent beyond reasonable doubt.
Given my conclusion that on the evidence I am satisfied beyond reasonable doubt that you were expecting and were attempting to possess a large amount of cocaine in the order of 1 pound, the question whether that is a correct application of Olbrich does not arise. You did not give evidence. I do not therefore have the benefit of direct evidence from you as to what your expectation and belief was or how you came by it, nor your explanation of the various telephone conversations relied upon by the Crown.
I accept that the telephone intercepts show that you were a user of cocaine and obtained the drug from Pinkstone on occasions in small quantities of a few grams at a time for your own use. However, the intercepts lead to the irresistible conclusion that you were accustomed to obtain from Pinkstone quantities in the order of an elbow, which I accept is a term used to describe 1 pound of a drug, which you would then on‑sell in smaller quantities to end users.
I accept the submission of the Crown that Pinkstone referred to giving you one in your telephone conversation with him at 12 minutes past 8 on 7 October 1999, call 61 - was a reference to 1 pound of cocaine which Pinkstone had obtained from Ken Durley the previous night. It is also overwhelmingly clear from that conversation that Pinkstone was telling you that he had packaged the drug well, it was a very good method and the cocaine was of very high quality. Indeed, to use Pinkstone's own words, the quality was 'unbelievable', it was 'as good as gold'.
The conversation between you and Pinkstone on 25 September 1999 recorded by the listening device secreted in Pinkstone's unit at Cottesloe affords considerable support for the conclusion that the relationship between you involved drug dealing and that you obtained small quantities of cocaine from Pinkstone for your own use, but that you also obtained larger quantities to on‑sell. The two of you talked in terms of a full kilo of something, and a little later you discussed the price of a drug, probably amphetamine or ecstasy tablets Pinkstone got from a person called Clifford and which you calculated the price you would have to pay Pinkstone was $2,820. Pinkstone told you not to worry about the $20."
The learned Judge went on to say:
"Mr Levy submitted that what you said to your brother Paul in your telephone conversation at 21.25 hours on 7 October 1999, call 73, about not knowing how much cocaine was in the parcel should be accepted at face value. This is the conversation in which you told Paul Brazier that there should be some Charlie in it. He asked you how much and you said 'I don't know,' and a little later he said, 'So you don't know how much is even there,' to which you replied 'You wouldn't have a clue'.
This conversation is to be looked at in the context that Paul Brazier was some thing of ring‑in here. He was not ordinarily involved in your drug‑dealing activities. The various telephone conversations show clearly he was very apprehensive and nervous about what was going on and what he had been asked to do. His anxiety was obviously worse the longer he was at the airport being unable to collect the parcel. From your point of view it made sense to you to tell your brother as little as possible, both so as not to scare him off and in case he was apprehended by the police.
Furthermore, the argument advanced by Mr Levy is that you did have a belief as to how much cocaine was in the parcel. You said that you were expecting half an ounce. If that was so there would have been no reason why you, having told your brother the parcel should contain cocaine, would not have gone on to say it was only half an ounce. As Mr Vandongen points out, there is no evidence whatsoever before me that the quantity of cocaine which was the subject of the arrangement between you and Pinkstone was half an ounce; the Crown submits that the inference you were expecting only half an ounce of cocaine is not rational and not reasonably open on the evidence because it would mean that Pinkstone had made a mistake of enormous proportions as to both quantity and value. He would have sent 499 grams of the drug valued at more than $90,000 to someone who only wanted some 14 grams worth about $3,000."
The learned Judge concluded that he was satisfied beyond reasonable doubt that the amount supplied was the quantity expected. In this respect the learned Judge said:
"So far as the nature of your relationship with Pinkstone is concerned, I am satisfied it was not just one in which you were a minor dealer at street level. Use of a mobile telephone in a false name of Toogood, again which I note you denied any knowledge of in the police interview, for your drug‑dealing arrangements, awareness of and care about the possibility of police surveillance, the scale of the drug‑dealing in terms of quantities in which you were dealing, the closeness of your relationship with Pinkstone in terms of the ability to access, and arrange for delivery of drugs, together with the quantity and purity of the cocaine the subject of this offence, the latter indicating it would have to be cut substantially for distribution to street level, as well as the potential value of it, which I accept was in excess of $90,000, all point to you being a dealer of some sophistication and experience and that you and Pinkstone were operating together in what may loosely be described as an on‑going drug‑dealing business arrangement whereby he obtained the product for you and you distributed it to users. I find accordingly."
The Crown's contention was that the applicant effectively provided the gate‑way to Western Australia for a significant amount of high‑grade cocaine.
The Crown also relied on the sophisticated nature of the applicant's operation, including his use of telephones, the use of anti‑interception telephone techniques, the use of code in the telephone conversations with Pinkstone and the fact that the applicant was dealing with a person who was engaged in drug dealing in such a secretive and highly sophisticated manner. The Crown also maintained that the transcript of the various telephone conversations, to which the applicant was a party, suggested that the applicant was representing himself as a skilled professional in the context of drug‑dealing. The applicant criticised others on the basis that their dealings were not as professional as those between himself and Pinkstone. While there was evidence that there were other drug dealings between the two of them that came out during the trial of issues, Roberts‑Smith J accepted that the applicant was only to be sentenced for the offences of which he had been convicted. While it was accepted that the applicant was a user of cocaine, it was contended that, on the evidence, he was also a significant dealer in illicit substances.

The Crown also accepted that in relation to the cocaine transaction in this case, it was the first occasion on which arrangements had been made for delivery by means of a safety deposit box in the manner described. This acceptance was based upon evidence available to the Crown.
It was also accepted by his Honour that a discount for a plea of guilty was appropriate, taking into account the facts that the plea was very late, being some 2‑1/2 years after he had been charged, although it had saved the community some costs and was also an indication of remorse on the part of the applicant. The Crown contended that the plea of guilty was inevitable and that the prosecution case was overwhelming, so that the discount should be significantly reduced.
At the time he came to be sentenced the applicant was already serving a sentence of imprisonment for a previous offence in respect of which he had been sentenced by Kennedy DCJ in 2000 to a term of imprisonment of 4-1/2 years.
The applicant is a plastering contractor who had some 16 employees. He had been the fund‑raising Chairman of the Cystic Fibrosis Society, a board member of Swan Cottage Homes Inc, the President of a Division of the Liberal Party and a member of the State Council and State Executive of the Party. He was described as a person who worked very hard. He had been born in England on 4 October 1951. His step‑father who was his mother's second partner was abusive and violent. At the age of 5 years, the applicant had been placed in an orphanage for some two years and was later reunited with his mother at the age of 7 years. He had four younger brothers. He had troubles in his early years. He was ultimately adopted by his mother's third partner, one Derek Brazier. He lived in London until the age of 17 when the family emigrated to Australia. He left school at the age of 11, having obtained his Leaving Certificate. He went into the plastering trade and in due course established a successful plastering business.
In the meantime, the applicant was married in 1969 at the age of 18. A son Bradley, now 31, was born shortly afterwards. The marriage broke down when the applicant was aged 36. There are two grandchildren. Between 1986 and 1992 the applicant also had other business interests including the ownership of a tavern and the building and management of a pub or club. He stated that as a result of his association with the hotel scene and his lavish lifestyle he became involved in managing the recreational activities of musicians. It was during that time that he came to use cocaine socially. His first marriage broke down in late 1986. He was married for a second time in 1992, but this lasted only a few months and he married for the third time in 1997. In December 1997 a close friend of his wife died, this resulted in her using cocaine on a more regular basis. The applicant supplied her with cocaine initially and both were using socially. His wife's use increased as time went on, resulting in her using another supplier. The learned Judge recounted in detail that the applicant's wife was supporting him and had reported that there had been a marked change in his attitude and behaviour over the last 2‑1/2 years.
The learned Judge concluded that the applicant had been less than frank with the reporting officer who prepared the pre‑sentence report, as the applicant failed completely to mention his involvement in drug dealing. His Honour made the same observation about a letter addressed to his Honour from the applicant dated 14 October 2000. The sentencing Judge went on to say:
"I think the most significant aspect of the pre‑sentence report to the exercise I must undertake is that which refers to your previous response to supervision and rehabilitation whilst in prison. You were released to community based work release in February 1994 and the report notes that you appeared to respond well to the work release program, engaging in employment and your community work requirements and also participation in studies at TAFE. Owing to that positive response you were released to parole supervision on 21 August 1994, which period you successfully completed in August 1996."
Reports in relation to the applicant's attitude and performance in prison following his incarceration in April 1999, were likewise positive and indicated that he understood the devastating effects of illicit drugs in the community. His Honour took all these matters into account, although he said he did not give them great weight:
"… because the evidence shows that you will say and do whatever you think will assist you, and your apparent rehabilitation whilst awaiting sentence is not something which necessarily indicates genuine long‑term rehabilitation."
So far as the starting point of imprisonment for 9 years, the subject of Ground 1 is concerned, this was arrived at in the following context of his Honour's sentencing remarks:
"Having regard to the general principles to which I have referred in relation to Pinkstone and Yanko, especially the need for general deterrence, the seriousness of this particular offence, the fact that it was committed whilst you were on bail for other drug offences of which you were subsequently convicted, the quantity and purity of the drug involved, the fact that your involvement was as a principal at the West Australian end, that it was a commercial activity for profit on your part and that, in my assessment, there is still a need in your case for specific or personal deterrence, I would think the appropriate starting point is 9 years' imprisonment. I would reduce that by 12 months for your efforts at rehabilitation whilst in prison although, as I have said, I have some reservations about that, bringing the term to 8 years. I would then allow a further 2 years for your plea of guilty. Having regard to the lateness of the plea and the basis of it, I do not consider it deserves more. That brings your term to 6 years and that is the term I would have imposed.
Had I sentenced you on 10 October last year, I would have considered you should have served or should serve 4 years of that on top of the sentence imposed in the District Court on 19 June 2000. I cannot backdate your sentence to take account of time spent in custody for the reasons already given. To achieve the same result as a sentence of 6 years' imprisonment imposed on 10 October last year and structured as I have outlined, therefore, I will impose a term of 4 years' imprisonment to be served cumulatively on the sentence imposed in the District Court on 19 June 2000."
An order was made that the applicant be eligible for parole.
In the context of sentencing, the Crown accepted that both the applicant and Yanko were below Pinkstone in the distribution chain. So far as the applicant is concerned, it was accepted that it was appropriate to characterise Pinkstone as a wholesaler and the applicant as a distributor on the basis that he was the person who effectively provided the gate‑way to Western Australia for a significant amount of high grade cocaine. In the case of Yanko, his Honour accepted that he was more or less in the same position as the applicant vis-à-vis Pinkstone, although the starting point for Pinkstone was 14 years for the supply to Yanko and the starting point for Yanko's sentence for possession of the methylamphetamine was 12 years. The essential point, however, was that it having been conceded by the prosecution that Pinkstone had a larger role in the operation, it was an error to adopt the same starting point for the applicant. If that is right, the principle involved is an infringement of the parity principle which is asserted in Ground 4. In my opinion, this is a point of substance which has resulted in an impermissible disparity which would give rise to a justifiable sense of grievance on the part of the applicant: cf Postiglione v The Queen (1997) 189 CLR 295; Jarvis v The Queen (1993) 20 WAR 201; Lowe v The Queen (1984) 154 CLR 606; and Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999.
The error having been established, the question then becomes whether the resulting sentence was manifestly excessive. That in turn requires a consideration not only of Grounds 2 and 3 but also of Grounds 4 and 5 and it is to them that I now turn.

Grounds 4 and 5

As is apparent, the learned Judge reduced the sentence of 9 years fixed as a starting point by 12 months for the applicant's efforts at rehabilitation while in prison, although he had some reservations about that. This step reduced the term to 8 years. His Honour then said:
"I would then allow a further 2 years for your plea of guilty. Having regard to the lateness of the plea and the basis of it, I do not consider it deserves more. That brings your term to 6 years and that is the term to 6 years and that is the term I would have imposed."
This is clearly a reference to the term that his Honour would have imposed had he been able to sentence the applicant on 10 October 2001. This is clear from the following passage in which his Honour said:
"Had I sentenced you on 10 October last year, I would have considered you should have served or should serve 4 years of that on top of the sentence imposed in the District Court on 19 June 2000. I cannot backdate your sentence to take account of time spent in custody for the reasons already given. To achieve the same result as a sentence of 6 years' imprisonment imposed on 10 October last year and structured as I have outlined, therefore, I will impose a term of 4 years' imprisonment to be served cumulatively on the sentence imposed in the District Court on 19 June 2000."
I note also that a term of 6 years was the term for which Pinkstone was ultimately sentenced in relation to the attempt to supply the cocaine to the applicant.
It was made clear by the learned Judge that had he sentenced the applicant on 10 October 2001, he would have imposed a term of imprisonment for 6 years and ordered that the applicant serve 4 years of the 6 years cumulatively upon any other term of imprisonment he was already serving. This would have added 16 months to the minimum period that the applicant would have to serve before being eligible for parole. The sentence of 4 years to be served cumulatively was imposed in order to take account of the prejudice that the applicant had suffered by the delay and to achieve the same result as a sentence of imprisonment for 6 years imposed on 10 October 2001 and structured as the learned sentencing Judge had outlined. Section 87 of the Sentencing Act 1995 provides that:
"87. Taking time on remand into account
If when an offender is being sentenced to imprisonment for an offence —
(a)he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account —
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."
The result of the course adopted by the learned sentencing Judge is that the applicant would be required to serve an additional 10 months of imprisonment over and above that which he would have served had he been sentenced on 10 October 2001 in the manner described by the learned Judge. Although his Honour attempted to achieve the same result, in fact, the result is that the applicant will serve a longer period than was intended.
It is apparent that what his Honour intended to do was to pass a sentence which would be the equivalent of the sentence of 6 years imposed on 10 October 2001 of which he had directed 4 years to be cumulative on the earlier sentence pursuant to s 94 of the Sentencing Act.
Section 94(1) of the Sentencing Act provides that:
"(1) In the case of a prisoner serving 2 or more parole terms —
(a)the time when he or she is eligible to be released on parole; and
(b)the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (2) or (3) those terms are to be aggregated."
Section 94(2) provides that:
"(2)A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly cumulatively with that other term."
The learned Judge clearly intended that the sentences should have been served partly cumulatively so that the parole terms would likewise be partly cumulative. The result was that, because sentencing was delayed until after the trial, a circumstance beyond the result of the applicant, he lost the benefit of having served a portion of his sentence dating from 10 October 2001, a period of 4 months, which in the circumstances represented the equivalent of serving a sentence of 1 year. As a matter of practicality, it was possible to achieve the same result in more than one way. It could have been achieved by imposing a sentence of 3 years instead of a sentence for 4 years or imposing a sentence of 6 years of which he ordered 4 years to be served cumulatively. In my opinion, the simplest way to achieve the desired result would be to reduce the sentence which would otherwise have been imposed by 1 year.

It was submitted by the Director of Public Prosecutions that a mistake in the staring point did not necessarily produce an erroneous outcome. Before this Court can interfere, it must be persuaded that a different sentence should have been imposed: s 693 Criminal Code. In my view, in the events which have happened, the end result was such that the applicant was left with a justifiable sense of grievance because the sentence imposed did not fully give effect to the intention of the learned sentencing Judge. In my opinion, justice would be done in the present case by granting the applicant leave to appeal, allowing the appeal and varying the sentence imposed by directing that 3 years of the sentence of 4 years imposed be served cumulatively upon the sentences the applicant was serving as at 10 October 2001.
WALLWORK J: I agree with the reasons for judgment and the conclusions of Malcolm CJ.
FITZGERALD AJ: I have had the advantage of reading the reasons for judgment of Malcolm CJ. I agree with them and there is nothing I wish to add.