Deakin v R

[2014] NSWCCA 121

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Deakin v R [2014] NSWCCA 121

Hearing dates:

1 April 2014

Decision date:

04 July 2014

Before:

Hoeben CJ at CL at [1]
Adams J at [2]
Hall J at [3]

Decision:

(1)Leave to appeal against the sentences imposed on the applicant by the District Court on 26 June 2012 be granted.

(2)Appeal allowed.

(3)Quash the sentences imposed by the District Court on 26 June 2012.

(4)In lieu thereof, the applicant be re-sentenced as follows:

(a)In respect of Count 1, to a term of imprisonment comprising a non-parole period of 6 years 9 months to commence on 28 March 2010 and to expire on 27 December 2016 with a balance of term of 3 years 9 months to expire on 27 September 2020.

(b)In respect of Count 2, to a fixed term of imprisonment of 12 months, commencing on 28 March 2010 and to expire on 27 March 2011.

(5)The earliest date upon which the applicant will be eligible for release to parole is 28 December 2016.

Catchwords:

CRIMINAL LAW - sentence appeal - one count supply a large commercial quantity of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act - one count participate in a criminal group contrary to s 93IK(1) - whether sentencing judge erred in commencing the sentence only two months before the completion of the earlier non-parole period being served - whether the sentencing judge made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1 - whether the sentencing judge erred in selecting the commencement date for the sentences imposed - leave to appeal granted - appeal allowed - applicant re-sentenced

Legislation Cited:

Crimes Act 1900
Drug Misuse and Trafficking Act 1985

Cases Cited:

Choi v The Queen [2007] NSWCCA 150
Franklin v R [2013] NSWCCA 122
Johnson v The Queen (2004) 78 ALJR 616
Kalache v R [2011] NSWCCA 210
LG v The Queen [2012] NSWCCA 249
Mill v The Queen (1988) 166 CLR 59
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Close (1992) 31 NSWLR 743
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v MMK (2006) 164 A Crim R 481
R v Scott [2005] NSWCCA 152

Category:

Principal judgment

Parties:

Andrew Benjamin Deakin (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Game SC; D Barrow (Applicant)
S Herbert (Respondent)
Solicitors:
The Law Practice (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/7695

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-06-26 00:00:00

Before:

Tupman DCJ

File Number(s):

2009/7695

Judgment

1. HOEBEN CJ at CL: I agree with Hall J.

1. ADAMS J: I agree with Hall J.

1. HALL J: The applicant, Andrew Benjamin Deakin, seeks leave to appeal in respect of a sentence imposed on him by the District Court on 26 June 2012.

1. On 27 May 2011, the applicant pleaded guilty to an indictment containing the following counts:

Count 1: supply a large commercial quantity of prohibited drug (30.242 kg of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of life imprisonment and a standard non-parole of 15 years applicable.

Count 2: participate in a criminal group contrary to s 93IK(1) Crimes Act 1900 [since renumbered to s 93T(1)], which carries a maximum penalty of 5 years imprisonment."

1. Delay

1. A Notice of Intention to Appeal was signed by the applicant on 20 July 2012. It was filed in the Registry on 3 August 2012. Following a number of extensions of time being granted, the present Notice of Appeal dated 14 November 2013 was filed on 19 November 2013.

1. The reasons for the delay are set out in the affidavit of Martin Ricci, solicitor for the applicant sworn on 31 March 2014.

1. The Crown did not make submissions opposing the grant of leave to appeal. The circumstances explaining delay, on the evidence in Mr Ricci's affidavit, establish that the delay was not occasioned by inactivity on the part of the applicant.

1. In the circumstances, I consider that leave to appeal should be granted, notwithstanding the delay that has occurred.

2. Sentences Imposed on 26 June 2012

1. In respect of Count 1, the applicant was sentenced to a term of imprisonment with a non-parole period of 7 years 6 months commencing 29 January 2011 to expire on 28 July 2018 with a balance of term of 3 years expiring on 28 July 2021.

1. In respect of Count 2, the applicant was sentenced to a fixed term of imprisonment for 12 months commencing 29 January 2011 and expiring on 28 January 2012.

3. Grounds of Appeal

1. The applicant relies upon the following grounds of appeal:

Ground 1 - Her Honour erred in commencing the sentence only two months before the completion of the earlier non-parole period being served by the applicant

Ground 2 - Her Honour made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1

Ground 3 - Her Honour erred in selecting the commencement date for the sentences imposed on Counts 1 and 2

1. In relation to Ground 3, I note that the Crown conceded in its written submissions (at [19]) that whilst the sentencing judge stated that she intended to backdate the sentences by three months that the sentences were in fact backdated by two months. Accordingly, in those circumstances leave to appeal should be granted in respect of that ground to give effect to the sentencing judge's intention.

4. Facts Concerning Previous Offences

1. Before considering Grounds 1 and 2, I will address the relevant matters in relation to earlier sentence proceedings concerning the applicant.

1. On 5 December 2008 the applicant appeared in the District Court (Flannery DCJ) for sentence regarding drug offences committed in 2000. He had avoided detection until his arrest in 2007.

1. Her Honour sentenced the applicant for the following offences:

(1)   Attempting to possess a trafficable quantity of a prohibited substance (116.7g of MDMA).

(2)   Possession of prohibited import (121.92g of MDMA).

1. The relevant facts on the sentencing hearing for those offences were that the applicant had been involved in a drug importation in 2000. On 6 January 2000, Australian Customs had intercepted two packages from South Africa. MDMA in the amount of 116.7g was secreted inside them.

1. The applicant and a man named Edrie Youssef had accepted delivery of the packages in a controlled operation. The applicant subsequently evaded police. The car that he had been driving was searched and a further 121.92g of MDMA were found along with the applicant's passport and a pill press machine.

5. Sentences Imposed by Flannery DCJ

1. On 5 December 2008 the sentencing judge sentenced the applicant to an overall sentence of 6 years 6 months imprisonment dating from 29 June 2007 with a non-parole period of 3 years 9 months. The non-parole period for these sentences expired on 28 March 2011. The total sentence expired on 28 December 2013.

1. The sentencing remarks of Flannery DCJ on 5 December 2008 were provided to the sentencing judge (Tupman DCJ) at the sentencing hearing on 31 May 2012.

1. The applicant was 25 years of age when he committed the offences dealt with by Flannery DCJ. He was 32 years of age when he committed the offences dealt with by Tupman DCJ.

6. Facts Relating to Counts 1 and 2

(a) Count 1: Supply large commercial quantity of prohibited drug

1. An Agreed Statement of Facts dated 27 May 2011 was tendered at the sentencing hearing (Exhibit A). The facts in relation to Count 1 are that on 19 April 2007 three persons by the name of Brack, Caristo and Teakaraanga were seen by surveillance officers at a residential unit at Warayama Avenue, Rozelle. Those premises were believed to be a "safe house" used by the relevant criminal syndicate. The men were subsequently followed to a factory in Wirega Avenue, Kingsgrove. On 20 April 2007 police carried out surveillance at or near the factory premises. The men were seen leaving the factory unit and were followed by surveillance officers. Police followed the vehicle in which they were travelling to Hurlstone Park and subsequently stopped the vehicle in which Brack, Caristo and Teakaraanga were situated. Caristo and Teakaraanga were arrested.

1. Brack was allowed to leave. He was followed in his vehicle during which he had telephone conversations with the applicant.

1. On 20 April 2007 police executed a search warrant at the Rozelle unit which had been leased by Caristo and which was used by the syndicate as a place to store drugs and other items.

1. Police located a suitcase and found within it 19 vacuum sealed bags each containing a brown powder. The bags were seized and sent to the Division of Analytical Laboratories for analysis. Tests found that the total weight of the powder inside the bags was 18.976 kg. The powder was identified as MDMA and was found to have a purity of 58%.

1. During the investigation police found the applicant's DNA and fingerprints on various items found in the home unit.

1. On 21 June 2007, an intercepted telephone conversation on the applicant's phone was made. The conversation was between the applicant and another male. The Crown contended that during these calls arrangements were made for the applicant to move from Sydney to Queensland and also to transport the MDMA to Queensland.

1. On 29 June 2007, the applicant entered a vehicle driven by another person. On that day he, and persons Connell and Makrillos were stopped and arrested. The applicant declined to be interviewed and was later charged.

1. Two vehicles were taken to the police station at the Entrance. It was there that the applicant was charged. A search of one of the vehicles found a large blue duffle bag. Inside the bag police found a number of plastic bags containing a large quantity of coloured tablets. These were seized and sent for analysis. Tests found the total weight of the tablets to be 11.266 kg. The tablets were identified as containing MDMA with a purity ranging from 24% to 28%. These drugs, along with the MDMA powder found in the unit at Rozelle, made up the total weight of 30.242 kg that is the subject of Count 1 on the indictment.

1. Further tests conducted on the plastic bags revealed that the applicant's DNA was located on some of the bags.

(b) Count 2: Participation in a Criminal Group

1. Between 2 March 2007 and 29 June 2007 the offender was involved with a criminal group carrying out drug-related activity.

1. The Agreed Facts recorded that whilst the applicant's participation was directly related to the supply of the MDMA the subject of Count 1, the criminal group itself had access to large amounts of other prohibited drugs including 31.6 kg of MDMA (found at the Kingsgrove factory), 7.4 kgs of cocaine and 12.88 g of lysergide (found at the Rozelle unit) and a further 12.9 kg of MDMA (found at the Rozelle unit in a locked container).

1. Police identified a number of properties used by the criminal group. These included the factory at Kingsgrove (used for the production of MDMA tablets), a serviced apartment in Pitt Street, Sydney (used to count money), and a storage unit at Camperdown (used to store cash and other items). The criminal group also had access to firearms and large amounts of cash. During the investigation police seized four handguns and $635,000 in cash.

1. In a Further Agreed Statement of Facts dated 31 May 2012 (Exhibit B) the following were recorded as agreed facts concerning the characterisation of the applicant's role in the organisation:

"i. The offender's role in the organisation was equivalent to that of the co-offender Peter CARISTO;

ii. The offender was an employee of the organisation in whom there was a degree of trust placed. The offender was entrusted with the transportation of 11.266 kilograms of MDMA tablets to Queensland (referred to in paragraph 24 of the agreed facts dated 27 May 2011) and the control and later transport of the 18.976 kilograms of the MDMA powder in the locked black suitcase in the second bedroom of the unit at Rozelle (referred to in paragraph 10 of the agreed facts dated 27 May 2011); and

iii. Although the offender's role was to transport the MDMA to Queensland for the organisation, his role was not limited by a lack of knowledge of the other participants or scope of the organisation."

7. The Applicant's Subjective Case

1. There were two reports of Mr Watson-Munro, psychologist, tendered at the sentencing hearing before Tupman DCJ, the first of which had been prepared for the sentence proceedings before Flannery DCJ.

1. The applicant's background was detailed in both reports. Mr Watson-Munro noted in his earlier report, dated 17 November 2008, that the applicant was born on 18 August 1974 to parents who were both heroin addicts. Mr Watson-Munro summarised the applicant's social history which included various traumas referrable to his formative childhood years. The deprivation that he suffered in those years resulted in him experiencing feelings of anxiety, depression and insecurity. These, in addition to the genetic determinants identified by Mr Watson-Munro, were said to offer an explanation into his early foray into illicit drug use involving cannabis as a means of self-medication.

1. In evidence at the sentencing hearing Mr Watson-Munro described the applicant's drug use as "an addiction of majestic proportions going back to his teenage years": T 17:25-26.

1. In his second report, dated 30 May 2012, Mr Watson-Munro observed that in times recent to the report the applicant had continued in custody to use drugs on a limited and intermittent basis. By the time of the sentencing hearing before Tupman DCJ the applicant had started on a methadone program. Mr Watson-Munro observed:

"In this regard he appears to have reached a point of 'criminal burnout' arising from his age and his extensive years of time in prison coupled to his exposure to the criminal element": Report of Mr Watson-Munro, 30 May 2012, p 4.

1. Mr Watson-Munro gave evidence at the sentence hearing. He had seen the applicant over a number of years and considered that there had been a dramatic shift in his psychological wellbeing. He considered that he was intelligent and had increasing insight into the origins of his problems, and he had ongoing family support. He expressed the opinion that an extended period of parole supervision was in both the applicant's and the community's best interests: T 16:5-10. He considered that the applicant was more amenable to supervision and treatment than he had been in the past. He confirmed that recent relapses confirmed the applicant's need for treatment in custody as well as on parole.

1. There were two character references. The authors of both had known the applicant for many years. Both described the development of his drug addiction. Both expressed the view that his arrest in 2007 had saved his life. They also considered he had significantly changed since entering custody and was remorseful for his conduct.

1. The Crown did not dispute the applicant's history as contained in the references, in the reports of Mr Watson-Munro or in a letter that he had written and which was tendered at the hearing.

8. Remarks on Sentence

1. In respect of the subject offences her Honour noted that the maximum penalty for the offence constituting Count 1 was life imprisonment and that there was a prescribed standard non-parole period of 15 years, and that the maximum penalty for the offence the subject of Count 2 was 15 years imprisonment (the maximum penalty was, in fact, 5 years imprisonment, but no point arises in the present proceedings in that respect).

1. Her Honour set out the facts in relation to Count 1. These reflected the relevant matters set out in Exhibit A.

1. Her Honour noted that the facts for the second count to some extent overlapped the facts for the first and that the applicant's commission of the first offence was, as part of a criminal group, obviously contributing to the criminal activity of drug supply.

1. The sentencing judge noted that the criminal group in question had access to large amounts of other drugs which included the quantity of 31.6 kg of MDMA found at the factory in Kingsgrove.

1. Her Honour noted that Count 1 was a very serious offence as reflected in the maximum penalty and that only a term of full-time custody would suffice to deal with the seriousness of that offence.

1. In determining the objective seriousness of the offence, Count 1, her Honour stated:

"... I take into account the quantity of ecstasy, the subject matter of the count, which is in fact sixty times more than the quantity defined as being a large commercial quantity, namely 500 grams. More than half of the total of thirty kilograms was also of relatively high purity, indicating, I find, that at least that portion would be further diluted before being supplied ultimately to end users. Also the offender's involvement was over a period of time, not just one or two days, almost four months, as part of an organised criminal activity which was well planned and sophisticated and he was clearly significantly involved in this syndicate": Remarks on Sentence at pp 4-5.

1. Her Honour then addressed the applicant's role stating:

"His role is important in assessing the seriousness of his offending. In the end this was not a matter of dispute between the parties. It is agreed that he played an important role and was an important part in the ongoing operation of this syndicate. His role included transporting the drugs from New South Wales to Queensland for the purpose of getting it to the market and it is conceded on his behalf that he intended to do something similar with the other drugs found under his control in the suitcase in the unit at Rozelle. He also had knowledge of what others in the syndicate were doing and was kept informed by Brack at least of the arrest of Caristo and Teakaraanga": Remarks on Sentence at p 5.

1. Her Honour continued that the applicant played:

"...a pivotal role in getting the drugs to market but there is no evidence before me that even if such an identity in fact exists in drug syndicates such as these, that he was the principal or the leading light ...": Remarks on Sentence at p 5.

1. Her Honour further noted that to the extent that it was possible to identify specific roles by title in drug syndicates, there was no evidence that the applicant was a principal or leading member of the syndicate: Remarks on Sentence at p 5.

1. Her Honour finally accepted that the applicant's role, like Caristo, was as an employee of the syndicate and not as a principal, however, her Honour further observed:

"... However I assess his role as being slightly higher than Caristo, who was found to be simply a mixer of drugs, an employee only, on the findings made on his sentence..."

1. In relation to the applicant's plea of guilty it was noted that the plea was entered on 27 May 2011 and was therefore a late plea. Her Honour noted that he was arrested on 29 June 2007.

1. The trial date of 23 May 2011 was vacated on 13 May 2011 when the applicant's legal advisors informed the court that there would be a plea of guilty.

1. Her Honour allowed a discount on sentence of 15%: Remarks on Sentence at p 9.

1. Her Honour noted that the applicant did not give evidence. In relation to the matter of assistance, her Honour allowed an additional 10% discount: Remarks on Sentence at pp 9-10.

1. In relation to subjective circumstances, the sentencing judge referred to the fact that she had read the reports of Mr Watson-Munro and also the sentencing remarks of Flannery DCJ in 2008 for the drug-related offences which occurred in 2000. Her Honour also noted that she had read the references tendered in evidence, as well as the letter of apology which the applicant wrote on 31 May 2012 and noted the evidence relating to the applicant's dysfunctional and difficult upbringing.

1. Her Honour observed that the offences for which he was sentenced in 2000 related to possession of what he thought was ecstasy in a parcel imported from South Africa and being in possession of ecstasy in the car from which he fled. He claims to have only had a peripheral involvement with the drugs, although it seemed that the sentencing judge did not accept his account in that respect. Flannery DCJ, however, found that his involvement was as a result of his very extensive drug use. In relation to the subject offences in these proceedings, her Honour observed:

"He was involved in the offences before me at around this time or towards the end of this period and I accept, more probably than not, there is a connection between his extensive drug use and his commission of the offences ...": Remarks on Sentence at p 11.

1. Her Honour accepted that his motive was one of financial gain.

1. As to the applicant's real prospects of rehabilitation, her Honour considered that they were hard to gauge because of his addiction over such a long period. Her Honour then stated:

"...He will however need a longer than normal period of supervision in the community in due course and hopefully access to drug and alcohol counselling whilst in custody ... He has also been studying the equivalent of the HSC in custody and other courses to improve his life chances on release...": Remarks on Sentence at p 12.

1. Her Honour noted that he had the support of family members and had an ongoing relationship with a female friend for almost 20 years. Her Honour stated:

"...All of this will assist his prospects of rehabilitation, although it must be noted that they were also part of his life at the time he committed these offences": Remarks on Sentence at pp 12-13.

1. Her Honour accepted that he had a genuine desire to move on and remove himself from the criminal milieu, to remain free of drugs, and to attempt to rehabilitate himself. Her Honour accepted that up to the time of sentencing he had demonstrated some insight into the connection between his offending behaviour and his use of drugs and that provided some optimism: Remarks on Sentence at p 13.

1. In formulating the sentence her Honour took a starting point for the applicant of 14 years imprisonment. The combined discount of 25% produced an overall period of 10.5 years. Her Honour then observed that the applicant would need a longer than normal period of supervision and that there would be an accumulation on the sentence imposed for the 2000 offence. Her Honour observed:

"...For those two reasons there will be some special circumstances and a reduction in what would otherwise be the appropriate non-parole period. I have determined that his non-parole period should be 7½ years, a little below the statutory ratio": Remarks on Sentence at p 16.

1. Her Honour then proceeded to impose the sentences set out in paragraphs 7 and 8 above. As there stated, the sentence for Count 2 was imposed on a concurrent basis, being a fixed term of 12 months.

9. Applicant's Submissions

1. It was noted that although the sentence determined by Flannery DCJ provided for a non-parole period that expired on 28 March 2011, the applicant was in fact not released from custody at that time because the proceedings in respect of the subject offences had yet to be concluded.

1. The sentence imposed by Tupman DCJ commenced on 29 January 2011 which it was said was the subject of an error as it had not been backdated by three months as had been intended, but only by two months. There was accordingly a period of partial concurrency of 2 months between the two sentences.

1. It was noted in the submissions for the applicant that the consequence of the decision of Tupman DCJ to partially accumulate the sentences by only two months was that the effective overall sentence being served by the applicant in relation to all offences amounted to 14 years 1 month, with a non-parole period of 11 years 1 month.

1. The submission noted that the application of the totality principle required an evaluation of the overall criminality involved in all of the offences with which the applicant was charged. It was submitted that, where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 308.

1. Reference was also made to the decisions in R v Close (1992) 31 NSWLR 743 per Hunt CJ at CL at 748; Kalache v R [2011] NSWCCA 210 at [31]-[32] per Buddin J.

1. It was submitted that had her Honour properly applied the sentencing principles regarding totality, the result would have been that the sentence for Count 1 would have overlapped the non-parole period imposed by Flannery DCJ to a considerable degree. Such an approach, it was contended, was necessary when sentencing the applicant, in order to avoid the imposition of a 'crushing' total term.

1. The decision to impose a sentence that only backdated the sentence by two months, it was submitted, brought about a total sentence that was not just and appropriate in all of the circumstances.

10. Crown Submissions

1. The Crown submitted that the decision as to whether to accumulate in respect of multiple sentences was fundamentally an exercise within the discretion of a sentencing judge.

1. It was plain, it was submitted, that the parties at the sentencing hearing had focussed upon the issue of totality. The Remarks on Sentence and the Statement of Facts in the prior proceedings heard by Flannery DCJ were before the sentencing judge. Her Honour gave consideration to the question of totality and determined that the sentence being imposed should be backdated "slightly" to reflect the overall totality. In this respect, reliance was placed upon the observations in Franklin v R [2013] NSWCCA 122 at [44] per Hoeben CJ at CL.

1. It was further submitted that the criminality involved in the prior offences was serious. Further, those offences were totally unrelated to the present matters. There was not involved here one course of conduct. Further, the criminality of the earlier offences could not be encompassed in the criminality of the offences in Count 1.

1. It was submitted that it was clear that her Honour took into account the appropriate considerations in determining to partially accumulate the sentence, being fundamentally an exercise within the discretion of the sentencing judge. Reliance was placed upon the observations of Simpson J in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7].

1. The Crown submitted that Ground 1 was without merit and should be dismissed.

11. Consideration

1. The offence of supply a large commercial quantity of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act (Count 1), carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. They are to be taken as statutory guidelines in the overall assessment of the relevant objective and subjective factors.

1. The offence of participate in a criminal group contrary to s 93IK(1) of the Crimes Act carries a maximum penalty of 5 years imprisonment.

1. The sentencing judge, as the above summation indicates, had regard to all relevant objective and subjective factors. Her Honour also undertook a comparative analysis of the applicant's offending to that of Mr Caristo, her Honour noting that both offenders were employees and not principals. She concluded, as earlier noted, that the applicant's role was "slightly higher" than Caristo. Notwithstanding the fact that Mr Caristo had been involved with a greater quantity of drugs, he had only been involved for a very short time.

1. Her Honour also observed that the subject offences were committed when police had been wanting to apprehend him for the offences committed in 2000. He had continued his criminal conduct in 2007 even after Caristo, Teakaraanga and others had been arrested earlier that year. Her Honour considered these factors were relevant to the applicant's moral culpability and elevated his offending above that of Caristo. This aspect of the proceedings, her Honour observed, made specific deterrence a more significant issue on sentencing. It also was said to have some bearing on the assessment of the applicant's prospects of rehabilitation. His relapses into drug use in August 2010, February 2011 and January 2012 impacted upon her Honour's assessment of the prospects of his rehabilitation. Understandably, her Honour concluded that the applicant's future prospects were hard to gauge because he had such a long history of drug abuse: Remarks on Sentence at pp 9-12.

1. Her Honour did not consider that the applicant's criminal record was of great moment, consisting mainly of Children's Court offence, other than the offences committed in 2000. Her Honour considered general and specific deterrence were important given the applicant's extensive drug history.

1. Her Honour made a finding of special circumstances upon the basis that the applicant needed a longer period of supervision as well as the accumulation on the sentence imposed for the offences committed in 2000.

1. Her Honour observed:

"One issue remains and that is the commencement date of this sentence. As I said Judge Flannery sentenced him to 6 years with a non-parole of 3 years and 9 months backdated to commence on 29 June 2007 when he was arrested for these offences. It follows that, had it not been for these matters before me, he would have been eligible for release to parole on 28 March 2011. Since then he has remained in custody, ineligible for release to parole because of the matters before me. In fact his overall sentence on that matter does not expire until 28 June 2013. The Crown argues that I should commence this sentence from 29 March 2011, the day that he became eligible for release to parole. I have actually decided to backdate it slightly by three months to reflect overall totality, that is the totality of all matters for which he is in prison." (Remarks on Sentence at p 16)

1. I note that the issue of totality was raised in submissions, although dealt with quite briefly. The transcript of 31 May 2012 records the following (at p 26):

"HER HONOUR: The Crown is urging me effectively to have not even a partial accumulation of full concurrency of this sentence with the pre-existing non-parole period. At the very least a partial accumulation is a fact to take into account when determining whether or not there should be special circumstances.

BOULTEN: That's the one feature of course.

HER HONOUR: If I accept there's a need for a longer than normal period of supervision in the community, that's another feature.

BOULTEN: Your Honour's got some evidence too. He's in the main [sic] but he's been assaulted a few times and it's not an easy gaol sentence for him. It's the first time he's been to gaol. These are added reasons why there are special circumstances. My friend's submission that this sentence should commence at the expiration of the non-parole period should not be accepted unless your Honour takes the course which has been largely frowned upon for ten or 15 years, namely that you just squash this sentence down to take into effect totality.

HER HONOUR: That was contrary to what Pearce said in any event. Pearce says it should be an appropriate sentence and then there should be considerations, when there is more than one charge, considerations of totality as between those charges, and Pearce doesn't say this, but over all as a matter of law there should be considerations of totality with pre-existing sentences and periods of time in prison.

BOULTEN: Had this Court or Flannery DCJ dealt with these two cases simultaneously then there wouldn't really have been this argument almost certainly I submit. But your Honour would in my submission partially accumulate. A number of years in custody for the 2000 offence would in my respectful submission more than adequately give effect to all of the relevant principles of totality, including give [sic] effect to the proportionality of offending for the totality of both offences."

1. In Postiglione v R, supra, McHugh J observed (at 307-308):

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v R, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.

The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:

'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'

This line of authority is consistent with the recognition of the totality principle found in s 16B of the Act which provides ..." (footnotes omitted)

1. In the present proceedings it was submitted that the sentencing judge's decision to impose a sentence backdated by two months has brought about a total sentence that is not just and appropriate in all the circumstances: Applicant's Written Submissions at [62].

1. The sentence imposed for Count 1 constituted a non-parole period of 71.4% of the overall term. As noted in the written submissions for the applicant, had her Honour not found special circumstances, the non-parole period on a sentence of 10 years 6 months (126 months) imprisonment would have been 7 years 10.5 months (94.5 months).

1. The practical consequence of the finding of special circumstances, it was noted, was that the applicant's non-parole period was reduced by 4.5 months. This, it was contended, resulted in an inadequate reduction in the non-parole period.

1. As earlier noted (at paragraph [63]) the effective overall sentence to be served by him, if one includes the sentences imposed by Flannery DCJ, amounts to 14 years 1 month imprisonment with a non-parole period of 11 years 1 month. The total non-parole period constitutes 78.6% of the overall term.

1. It was submitted that at no point in the Remarks on Sentence did the sentencing judge refer to the impact of the combined or overall non-parole period on the proportion of time to be spent in custody as opposed to the period on parole supervision. It was said that this was an important issue that appeared to not have been given consideration: Applicant's Written Submissions at [70].

12. Conclusion and Orders

1. I consider that Grounds 1 and 2 should be considered together.

1. It is first relevant to note that the practical consequence of the finding of special circumstances produced only a very small reduction in the applicant's non-parole period in respect of the sentence imposed for the offence in Count 1, namely, 4.5 months.

1. The sentencing judge was required to determine what would constitute an appropriate application of the totality principle having regard to the term of the sentences imposed by Flannery DCJ in determining what should be an appropriate overall non-parole period having regard to the criminality involved in the subject offences and issues of concurrence and accumulation of sentences.

1. I have referred above to the very serious nature of the offence constituting Count 1 and the particular matters her Honour, with respect, correctly identified bearing upon the objective criminality of that offence. Her Honour also observed that the offending in respect of counts 1 and 2 occurred in the period in which the applicant was wanted by police in respect of the 2000 offences. These are all matters required to be taken into account in the application of the totality principle in determining whether the aggregation of the sentences imposed on the previous sentences is a just and appropriate measure of the total criminality involved.

1. Ground 1 requires a determination as to whether, as submitted for the applicant, the sentencing judge erred in the application of the totality principle. Error is argued upon the basis that the commencement date of the sentences imposed in respect of Counts 1 and 2, namely a date that was only two months before the completion of the earlier parole period being served by the applicant, did not give effect to that principle.

1. I have concluded that error has been established in that respect. In so concluding, I proceeded upon the following bases:

(i)   It has long been established that the totality principle applies where an offender is serving an existing sentence and is sentenced by a second court for a period after the first offence: Mill v The Queen (1988) 166 CLR 59 at 66; Choi v The Queen [2007] NSWCCA 150 at [157]. In R v MMK (2006) 164 A Crim R 481 at [11] the Court observed:

"It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616."

(ii)   Questions of concurrence and accumulation are discretionary matters for the sentencing judge: R v Hammoud, supra, at [7]; R v Scott [2005] NSWCCA 152 at [31]; LG v The Queen [2012] NSWCCA 249 at [24].

(iii)   Judges at first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: Johnson v The Queen (2004) 78 ALJR 616 at [26].

(iv)   That said, the discretion is generally circumscribed by a proper application of the principle of totality: R v MMK, supra, at [11].

(v)   In the present case the relevant matters on the question of concurrence and accumulation are:

(a)   The terms of the sentence imposed by the District Court on 5 December 2008, including in particular the non-parole period of 3 years 9 months;

(b)   The sentence including, in particular, the non-parole of 7 years 8 months imposed by the sentencing judge in these proceedings on 26 June 2012 imposed in respect of Count 1;

(c)   The assessment of the applicant by Mr Watson-Munro including his opinion that an extended period of parole supervision was in both the applicant's interests and the community's interests, an opinion that was accepted by the sentencing judge.

(vi)   The matters referred to in (v), in my opinion, required a greater degree of concurrence than was provided for by the sentences imposed on 26 June 2012 in respect of Counts 1 and 2 to ensure a proper application of the totality principle, having regard to the full circumstances of the case.

1. A proper application of the totality principle in this case, in my assessment, would require that the sentences imposed in respect of Counts 1 and 2 commenced 12 months prior to the completion of the non-parole of 3 years 9 months in respect of the earlier sentence imposed on 5 December 2008.

1. I am of the further opinion that, apart from the issue of concurrency of the sentences in respect of Counts 1 and 2, the total terms of these offences and the non-parole period imposed in respect of Count 1 represent appropriate sentences having regard to all relevant factors identified by the sentencing judge.

1. The effective overall non-parole period by reason of the order I propose in these proceedings will be a period of 9 years 6 months in lieu of the total effective non-parole period of 11 years 1 month arising under the sentences imposed respectively by Flannery DCJ and Tupman DCJ on 5 December 2008 and on 26 June 2012. As a result of the variation to the concurrence of the sentences the effective overall non-parole period is therefore reduced by 1 year 7 months.

1. The order I propose I consider will also make the appropriate adjustment to the sentences imposed on 26 June 2012, thereby addressing the issue raise by Ground 3: see paragraph [12] above.

1. In re-sentencing, the finding of special circumstances by Tupman DCJ should apply in determining the ratio of the non-parole period to the total term in respect of Count 1.

1. Additionally, I note that on the orders I propose the ratio of the overall non-parole period to the overall term in respect of sentences imposed on 5 December 2008 and on 26 June 2012 will be approximately 71.6%.

1. Accordingly, I propose the following orders:

(1)   Leave to appeal against the sentences imposed on the applicant by the District Court on 26 June 2012 be granted.

(2)   Appeal allowed.

(3)   Quash the sentences imposed by the District Court on 26 June 2012.

(4)   In lieu thereof, the applicant be re-sentenced as follows:

(a)   In respect of Count 1, to a term of imprisonment comprising a non-parole period of 6 years 9 months to commence on 28 March 2010 and to expire on 27 December 2016 with a balance of term of 3 years 9 months to expire on 27 September 2020.

(b)   In respect of Count 2, to a fixed term of imprisonment of 12 months, commencing on 28 March 2010 and to expire on 27 March 2011.

(5)   The earliest date upon which the applicant will be eligible for release to parole is 28 December 2016.

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Amendments

14 July 2014 - Correction of parole period expiry date.

Amended paragraphs: 101(4)(a) and Decision

Decision last updated: 09 July 2014