Connelly v R

[2012] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Richard Warren James CONNELLY v R [2012] NSWCCA 144

Hearing dates:

15 February 2012

Decision date:

04 July 2012

Before:

McClellan CJ at CL at [1]
Hidden J at [2]
Rothman J at [3]

Decision:

(1) Leave to appeal granted;

(2) The sentence imposed by the District Court on Richard Connelly on 16 March 2011 be quashed and, in lieu thereof, he be sentenced to a non-parole period of one year and nine months commencing 16 December 2010 and concluding 15 September 2012 with a remainder of term of 14 months, concluding 15 November 2013.

Catchwords:

CRIMINAL LAW - Sentence - appeal - sentence imposed cumulative on prior sentence currently being served - insufficient potential parole period - insufficient account taken of effect of accumulation - principle of totality - more appropriate to round sentence downward to years and months and disregard parts of months.

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Barrett v R [2011] NSWCCA 213
Briggs v R [2010] NSWCCA 250
Clarke v R [2009] NSWCCA 49
Ha v R [2010] NSWCCA 83
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Musgrove v R [2007] NSWCCA 21
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Dunn [2007] NSWCCA 312
Veen v R (No 2) (1988) 164 CLR 465

Category:

Principal judgment

Parties:

Richard Warren James Connelly (applicant)
Regina (respondent)

Representation:

Counsel:
K H Averre (for the applicant)
N J Gouda (for the respondent)
Solicitors:
Brenda Duchen (for the applicant)
Director of Public Prosecutions (for the respondent)

File Number(s):

2010/47866

 Decision under appeal 

Date of Decision:

2011-03-16 00:00:00

Before:

Judge Colefax

Judgment

1. McCLELLAN CJ at CL: I agree with Rothman J

1. HIDDEN J: I agree with Rothman J

1. ROTHMAN J: The applicant, Richard Connelly, seeks leave to appeal the sentence imposed upon him by the District Court for the offence of recruiting another to carry out a criminal activity contrary to s 351A of the Crimes Act 1900. Mr Connelly had sought to procure someone to render the potential victim blind and deaf, because the victim had provided information to the police that led to Mr Connelly being charged with manufacturing drugs.

1. The offence carried a maximum penalty of 7 years' imprisonment and may be prosecuted summarily: Schedule 1, Table 1 Criminal Procedure Act 1986. Mr Connelly was sentenced to a non-parole period of 2 years, 2 months and 22 days as part of a head sentence of 2 years, 11 months and 21 days (hereinafter "the non-parole period" and "the head sentence" respectively, and overall as "the sentence").

1. The District Court imposed the sentence on 16 March 2011 and the sentence commenced on 16 December 2010 (i.e. the sentence was backdated three months). At the time that he was sentenced, Mr Connelly was serving a sentence (hereinafter "the earlier sentence") imposed for an earlier offence (hereinafter "the earlier offence"), being a sentence of imprisonment for a non-parole period of 18 months as part of a head sentence of 3 years, commencing on 17 June 2009.

1. The offence that gave rise to the sentence was committed in June 2009 while Mr Connelly was on bail pending commencement of the earlier sentence. The non-parole period for the earlier sentence concluded on 16 December 2010 and Mr Connelly had been refused parole. Therefore, he was still imprisoned at 16 March 2011, when the sentence was imposed.

1. The relevant sentences that had been imposed are best represented by the following table:

COMMENCED	CONCLUSION OF NON-PAROLE PERIOD	CONCLUSION OF HEAD SENTENCE
Earlier sentence	17/06/09	16/12/10	16/06/12
The sentence	16/12/10	9/03/13	6/12/13

Ground of appeal

1. The applicant raises only one ground of appeal:

"The sentencing judge erred in failing to find special circumstances and imposed a sentence which failed to give proper effects [sic] to s 44 of the Crimes (Sentencing Procedure) Act 1999."

1. In reality, this ground of appeal raises some interlocking issues and, in particular, the principle of totality and the effect of accumulation of sentences on the fixing of an appropriate non-parole period.

Facts

1. The applicant was engaged in manufacturing methylamphetamine and was arrested in relation to that offence in November 2006, due in part to information provided to the police by the prospective victim of the later offence.

1. The applicant was released on bail on 19 January 2007.

1. On 11 June 2009, while the applicant was still on bail, information was provided to the police by two of the applicant's associates and a controlled operation began.

1. An undercover police operative, "Sam", met the applicant in the presence of the two associates.

1. "Sam" was told by the applicant words to the effect that the applicant wanted "Sam" to make the prospective victim blind and deaf so that "he'll suffer for a long time" because "you go crazy in your own head if you can't see and you can't hear".

1. The applicant gave "Sam" the victim's name and the suburb in which he lived, and said he would try and get a photograph for him. "Sam" arranged to collect the applicant and go with him to a methadone clinic at St Marys so that the applicant could identify the victim.

1. The applicant agreed to pay "Sam" in methylamphetamine.

1. The following Tuesday, being 28 July 2009, "Sam" and the applicant drove to the methadone clinic at St Marys. While waiting for the victim, they had a further discussion about the applicant's desires for the victim to be blinded and deafened. They also discussed payment for "Sam" to do these acts.

1. The victim did not attend the clinic and so the two left. The applicant took no further steps in relation to this offence.

The submissions of the parties

1. The applicant submits that the non-parole period imposed constituted 75 percent of the total term of sentence. However, the sentence, as already stated, was wholly cumulative on a previous sentence imposed, resulting in an overall non-parole period of approximately 83 percent. The applicant seeks a reduction in the non-parole period.

1. The applicant submits that his Honour erred in not finding special circumstances (on the basis of the applicant's rehabilitation needs and the accumulation of the sentence) because:

(a)Where, as in this case, accumulation has taken place, the sentencing judge should provide reasons for an increase in the ratio of the non-parole period to the remainder of the sentence: R v Dunn [2007] NSWCCA 312.

(b)The absence of express reference by the sentencing judge to special circumstances indicates that his Honour may have overlooked giving appropriate focus to the statutory ratio: Briggs v R [2010] NSWCCA 250.

1. Essentially, the Crown submits that it was within his Honour's discretion to decline to find special circumstances: see, for example, Ha v R [2010] NSWCCA 83.

1. Further, in relation to s 44 of the Crimes (Sentencing Procedure) Act 1999, the Crown submits that the provision does not prohibit the imposition of a non-parole period exceeding the ratio of 3:1, whether in relation to a single sentence or accumulated sentences. Rather, the Crown suggests that s 44 strictly relates to the relationship between the period of full-time custody and the period on parole for each particular offence: Clarke v R [2009] NSWCCA 49; Musgrove v R [2007] NSWCCA 21.

1. The Crown submits that, even though accumulation is a recognised basis for finding special circumstances, it is not mandatory for a sentencing judge to make such a finding: Barrett v R [2011] NSWCCA 213. In this case, the sentencing judge was not asked to find special circumstances based upon accumulation and thus, the Crown submits, the Court should not interfere with the outcome.

1. Moreover, the Crown submits that, in the event that this Court finds error, no lesser sentence is warranted and, nevertheless, the appeal should be dismissed: s 6(3) of the Criminal Appeal Act 1912.

Consideration

1. As earlier stated, underpinning the criticism of the sentence imposed is the principle of totality, as it applies to the task of imposing a sentence at a time when an offender is already in custody.

1. The more orthodox approach when sentencing an offender, who is already serving a sentence, is for the sentencing judge to impose a sentence that would have been likely to have been imposed if the offender had committed all of the offences in one jurisdiction and had been sentenced at one time. The requirement remains that each individual sentence reflects the criminality of the offence to which it relates and the overall sentence reflects the total criminality of the crimes committed: Pearce v R [1998] HCA 57; (1998) 194 CLR 610.

1. The charging of two or more offences that involve common elements requires the court to ensure that there is no double punishment for the one offending course of conduct: Pearce at [40]. A commonsense approach to the issue must be taken: Pearce at [42].

1. Only after fixing an appropriate sentence for each offence, should a sentencing judge consider questions of accumulation and concurrency and questions of totality: Pearce at [45]. The foregoing principles apply even where there is a significant delay between the different sentencing exercises and even where there are different jurisdictions or judges involved: Mill v The Queen (1988) 166 CLR 59.

1. The sentencing discretion must be exercised judicially and cannot be calculated arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. There is, therefore, no single correct answer. It is always the task of the sentencing judge to apply the general sentencing principles to fix an appropriate head sentence and an appropriate period during which the offender is eligible for parole, bearing in mind the often disparate goals of punishment, protection of society, deterrence of the offender and others who might be tempted to offend, retribution and rehabilitation: s 3A of the Crimes (Sentencing Procedure) Act and Veen v R (No 2) (1988) 164 CLR 465 at 476.

1. Further, it is a matter within the discretion of the sentencing judge whether the judge considers there are special circumstances that warrant the fixing of a greater proportion of the sentence as the period for which an offender is eligible for parole and the proportion that the legislature has prescribed: s 44 of the Crimes (Sentencing Procedure) Act.

1. The prescription in s 44 of the Crimes (Sentencing Procedure) Act relates to individual sentences and does not preclude the fixing of a ratio greater than 3:1: see Musgrove and Barrett.

1. Accumulation of sentences has an arithmetic effect on the proportion. Where, as here, a sentencing judge has, by fixing a sentence that reflects the 3:1 ratio, implemented an overall sentence that reflects a greater than 3:1 ratio without otherwise indicating such an intention, the Court will be more astute in assuming that the issue has been overlooked. In my view, in this case, it has been overlooked or alternatively, the sentencing judge has not applied the totality principle.

1. The offence is serious. The sentence needs to reflect that seriousness. Yet no complaint is made by the Crown that the head sentence is inadequate. In my view, the head sentence is adequate in all of the circumstances, but the length of potential parole is inadequate to enable, subject to the satisfaction of the NSW State Parole Authority, an appropriate period for rehabilitation and assimilation into the community.

1. I do not propose to alter the head sentence, and I take the view that the overall potential parole period ought to reflect the ratio that the sentencing judge thought was appropriate, namely, 3:1. The sentencing judge for the earlier offence fixed a lower ratio, namely, 1:1.

1. However, I do not consider it appropriate to fix a sentence by reference to a number of days. It is far better to round any sentence that may be imposed. Other than rounding the days, I would not interfere with the head sentence imposed and would implement a ratio for the non-parole period of 3:1.

1. For the foregoing reasons, I propose that the Court make the following orders:

(1) Leave to appeal granted;

(2) The sentence imposed by the District Court on Richard Connelly on 16 March 2011 be quashed and, in lieu thereof, he be sentenced to a non-parole period of one year and nine months commencing 16 December 2010 and concluding 15 September 2012 with a remainder of term of 14 months, concluding 15 November 2013.

Amendments

01 August 2012 - incorrect name

Amended paragraphs: Name of solicitor

Decision last updated: 01 August 2012