Hantzis v The Queen - [2006] NSWCCA 387

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: HANTZIS v THE QUEEN [2006] NSWCCA 387

FILE NUMBER(S):
2006/1304

HEARING DATE(S): 18 October 2006

DECISION DATE: 04/12/2006

PARTIES:
Demitrios Hantzis - Appellant
Regina

JUDGMENT OF: Basten JA Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/1442

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

COUNSEL:
Mr P. Byrne SC/Mr L. Ratsinas - Appellant
Mr P. Barrett - Respondent Crown

SOLICITORS:
S. Naris - Appellant
S. Kavanagh - Respondent Crown

CATCHWORDS:
SENTENCING – failure to sentence separately for each offence – whether Court of Criminal Appeal had power to deal with outstanding charge
SENTENCING – cultivation of commercial quantity of marijuana – whether starting sentence of 12 years manifestly excessive

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50
Crimes Act 1958 (Vic), s 569
Criminal Appeal Act 1912 (NSW), ss 7, 10
Criminal Procedure Act 1986 (NSW), s 167
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25, 32, 33

DECISION:
(1) Extend time within which the application for leave to appeal might be filed up to and including 2 June 2006
(2) Grant leave to appeal against the sentence imposed by the District Court on 10 June 2005 in relation to the first charge of cultivating a commercial quantity of cannabis plants
(3) Allow the appeal and set aside the sentence imposed on 10 June 2005 and in lieu thereof sentence the applicant as follows:
(a) in relation to the cultivation charge, sentence the applicant to a non-parole period of three years and four months to date from 8 April 2004 and to expire on 7 August 2007, with a balance of sentence of two years and eight months to commence on 8 August 2007 and to expire on 7 April 2010
(b) in relation to count 2, sentence the applicant to a fixed term of 2 years imprisonment to date from 8 April 2004, which sentence will have expired on 7 April 2006.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/1304
DC 04/11/1442
BASTEN JA
HIDDEN J
BELL J
4 December 2006

Demitrios HANTZIS v THE QUEEN

On 10 June 2005, the applicant was sentenced in relation two charges arising from a commercial cultivation of marijuana on a farm near Narrabri. He pleaded guilty to both charges. The first charge was for the cultivation of a commercial quantity of cannabis plants under s23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). A separate offence of supply was taken into account in sentencing for the first charge. The second charge was for the supply of a commercial quantity of cannabis leaf under s25(2). He was sentenced to a term of imprisonment for nine years. He appealed against the severity of that sentence.

The issues for the Court of Criminal Appeal were:

whether the sentence for the first charge was manifestly excessive;

whether the sentencing judge failed to sentence separately for each offence, and if so, whether this Court had power to deal with the outstanding second charge.

Held by Basten JA (Hidden & Bell JJ agreeing):

In relation to (i)

The phrase “instinctive synthesis”, which was used by the sentencing judge to arrive at a starting sentence of 12 years, must be understood in its historical context. It is used to describe the effect of weighing a number of disparate elements to reach a considered conclusion: at [14]–[16].

Wong v The Queen (2001) 207 CLR 584; Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291, applied.

Sentencing judges have a practice of assessing overall criminality and then providing a “discount” on account of a plea of guilty or assistance given to authorities, in accordance with an established range. When applied with due regard to the circumstances of the particular case, that practice clearly has much to recommend it in terms of consistency of approach: at [17].

Taking account of the objective level of criminality, the subjective circumstances of the applicant and the supply charge, the starting point of 12 years adopted by his Honour was too high: at [23].

The factors of this case, viewed against a background of the comparable earlier authorities, indicate that an appropriate sentence without reduction for a guilty plea, would have been eight years: at [23].

Giammaria v Regina; Karagiannis v Regina [2006] NSWCCA 63; R v Mangano (2006) 160 A Crim R 480, considered.

In relation to (ii)

The sentencing judged failed to sentence the applicant on the second charge, namely the supply of the prohibited drug: at [11].

Pearce v The Queen (1998) 194 CLR 610, applied.

The logic and statutory purpose underlying sub-ss7(1) and 7(1A) of the Criminal Appeal Act 1912 (NSW) are clearly the same, namely that interference in one aspect of an overall sentence may cause anomalies if the remainder of the sentence or sentences could not be addressed. A purposive construction of s7(1A) would allow the Court to pass such sentence as it thinks proper in respect of another offence, even where no sentence had been specifically imposed for that offence: at [33].

Ryan v The Queen (1982) 149 CLR 1; McL v The Queen (2000) 74 ALJR 1319, considered.

The Court should adopt the approach that the sentencing judge had inadvertently imposed a “general rule sentence” on account of the criminality covered by the charges then before him to which the applicant pleaded guilty. On that view, there is a relevant “sentence” which may be varied pursuant to s7(1A) and consistently with the purpose of the provision: at [36].

There is a complete overlap of criminality in relation to the two charges. Accordingly, the applicant having been appropriately sentenced for that conduct on the first charge, it would not be appropriate to require him to serve any additional period of imprisonment in relation to the second charge: at [38].

In the present circumstances, given the somewhat anomalous circumstances in which the Court is called upon to exercise its powers, the public interest in the administration of justice would be satisfied by the imposition of a fixed term of 24 months for the second charge, to be served concurrently with the sentence on the first charge: at [39].

IN THE COURT OF
CRIMINAL APPEAL
CCA 2006/1304
DC 04/11/1442
BASTEN JA
HIDDEN J
BELL J
4 December 2006

Demitrios HANTZIS v THE QUEEN

Judgment

BASTEN JA: On 10 June 2005 Mr Demitrios Hantzis came before the District Court at Sydney for sentencing in relation to charges arising from a commercial cultivation of marijuana on a farm near Narrabri in the north of the State. He was sentenced to a term of imprisonment for nine years, with a non-parole period of five years. He appeals against the severity of that sentence.
The application for leave to appeal against sentence was not filed until 23 May 2006 and accordingly the applicant requires an extension of time within which to file the application: Criminal Appeal Act 1912 (NSW), s 10(1). It has been said from time to time that delays in filing notices of appeal or applications for leave to appeal will not automatically be excused and that, where any considerable delay has occurred, “exceptional circumstances will be required” before the application or appeal is permitted to proceed: see, eg, R v Lawrence & Ors [1980] 1 NSWLR 122 at (74) Nagle CJ at CL and Yeldham J. However, each case must be judged according to its own circumstances and the discretion to extend time cannot be fettered by a rigid practice. In the present case, as will be discussed below, there was fundamental error in the sentencing process and there is substance to the applicant’s complaint that the sentence imposed was excessive. It was not suggested that any prejudice would be suffered by the prosecution in seeking to address the arguments now raised on behalf of the applicant nor that there was any public interest which would weigh against the correction of error. Both the interests of the applicant and the public interest in the regularity of the administration of criminal justice favour an extension of time. Accordingly, that extension should be granted.
Failure to sentence for each offence
The fundamental error in the sentencing process arose from a failure on the part of the trial judge to sentence separately for each offence. The applicant was originally charged before the Parramatta Local Court on 9 April 2004 with two offences under the Drug Misuse and Trafficking Act 1985 (NSW) (“the Drug Misuse Act”). The first allegation was that between 1 April and 8 April 2004, the applicant knowingly took part in the cultivation of 850 cannabis plants, being a commercial quantity, in contravention of s 23(2)(a) of the Act. A commercial quantity was 250 plants; a large commercial quantity was 1,000 plants. Accordingly, the offence involved cultivation in the upper range of the commercial quantity. Pursuant to s 33(1)(a) and (2)(b), the maximum penalty could involve a fine of 3,500 penalty units or imprisonment for 15 years, or both.
The prosecutor also filed a document in Form 1 specifying a further offence which the applicant wanted the Court to take into account when dealing with him for the principal offence. That offence, which was said to have taken place at the applicant’s home in Sydney, involved the deemed supply of 10.297 kilograms of cannabis leaf. That constituted an offence under s 25(1) of the Drug Misuse Act, the amount being in the mid-range for an indictable quantity (1 kilogram – 25 kilograms). Dealt with on indictment, the offence carried a maximum penalty of 2,000 penalty units or imprisonment for a term of 10 years or both: s 32(1)(c) and (h).
The applicant was separately charged with an offence of knowingly taking part in the supply of a commercial quantity of cannabis leaf, being a second offence under s 25(1) of the Drug Misuse Act. The same penalty applied as for the cultivation offence. (The court attendance notice referred to the wrong provision, but it was not suggested that anything turned on that.)
As the sentencing judge noted in his judgment on sentence, the facts relating to the applicant’s involvement in the cultivation and supply were sparse. The cultivation took place at a property known as “Valala” at Jacks Creek, near Narrabri. The property included three distinct sites on which marijuana was grown and information suggested that particular offenders tended one of three crops. The statement of agreed facts in relation to the applicant stated at par 11:
“The offender ran the operation mainly in relation to Crop B from the end of February 2004 until 8 April 2004 and on a number of occasions he arranged for harvested and packaged cannabis to be taken to Sydney until his arrest on 8 April 2004. It has not been resolved what benefit he would receive.”
Crop B consisted of 850 fully grown plants. At the time that the police searched the property, the majority of plants had been harvested and were either lying in the open on black plastic sheets, or were in a large drying shed.
The proceedings in the Local Court were correctly commenced by issue of court attendance notices in relation to each charge. The applicant pleaded guilty and was committed for sentence to the District Court. It appears that no document in the form of an indictment was prepared and the matter proceeded in the District Court on the basis of the court attendance notices. No issue was raised as to the propriety of this procedure, although it appears from the transcript in the District Court that the sentencing judge expected to be provided with an indictment which would have identified two separate counts (in addition to an offence to be taken into account on the first count), and may at some stage have lost sight of the fact that the matter was proceeding on the basis of two separate court attendance notices. In any event, it is common ground that only one sentence was imposed. A second possible explanation is that his Honour was confused by the fact that there were three offenders before him for sentence at one time and his judgment, at pp 1-5 dealt generally with the background circumstances of the plantation, as it affected all three offenders. After referring to the statement of agreed facts, his Honour noted (p 2):
“Each person was charged with an offence of knowingly taking part in the cultivation of prohibited plants. Some also indicated a desire to have matters taken into account on the Form 1 schedule.”
His Honour then turned (at p 5 of his judgment) to the individual circumstances of the applicant and stated:
“The facts alleged against him concern his involvement in the commercial cultivation of marijuana and his involvement in a supply charge of marijuana, that being not less than the commercial quantity, 10.297 kilograms … .”
In his written submissions, the prosecutor stated:
“The applicant was sentenced to one sentence only. … It is unfortunate that his Honour’s sentencing discretion thereby has miscarried, it being a fundamental error not to pass a sentence in respect of each offence for which the applicant stood to be sentenced.”
In support of that proposition, the prosecutor referred to a passage in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at [45], where their Honours said:
“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”
Pearce bore similarities to the present case, in that the offender was prosecuted for two offences involving a substantial factual overlap. The offender was sentenced to the same sentence on each count, each to be served concurrently with the other. The joint judgment, with which Gummow J agreed, continued at [49]:
“Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.”
In the present case, the prosecutor submitted that “identical sentences on the two counts would not be appropriate taking into account the matter on the Form 1”. It appears that the prosecutor envisaged that this Court should re-sentence the applicant, so as to impose a lesser sentence in relation to the second charge, with the result that the overall sentence would not differ from that imposed by the trial judge.
A careful reading of his Honour’s reasons for judgment in relation to the applicant reveals a clear intention to impose “a sentence”, a phrase used on more than one occasion. It is also clear from his Honour’s reasons (to which further reference will be made below) that the offence for which he imposed the sentence was the cultivation offence, correctly taking into account the further offence identified on Form 1, namely the supply of 10.297 kilograms of marijuana found in his home. It follows, in my view, that the applicant was simply not sentenced on the second charge, namely the supply of a prohibited drug, being the commercial quantity of cannabis leaf found at the Jacks Creek property. The proceedings before this Court involve an application for leave to appeal against the sentence imposed on him: if he was not sentenced on the second charge, all that can be said is that it remains a charge to which he pleaded guilty, but for which he has not been sentenced and therefore there is no sentence before this Court in relation to that charge. The result is unsatisfactory, and the consequences will be considered below in relation to the sentence which is before the Court.
Excessive sentence
At the sentencing hearing, an attempt was made to portray the applicant’s father as the principal in the cultivation, at least in relation to crop B. The applicant, it was suggested, only became involved when his father became unwell. The sentencing judge rejected this contention as largely unsupported by evidence and as inherently implausible. He found that the applicant had “a major management role” in relation to the crop. His Honour stated (at p 10):
“He was moving workers to the premises, supplies and food to the premises and he was taking drugs from the premises. Whether this was for his own purpose, because this was his own enterprise, or whether it was for his father or somebody else, I am unable to say. All I can say is, those were the things he was doing.”
That conclusion was consistent with material contained in the statement of agreed facts, at par 12, namely:
“During the period of his involvement the offender recruited a number of persons to work/tend/assist in harvesting the cannabis crop. He also arranged for them to be transported to the crop site and arranged for food and other supplies to be delivered there. On 31 March 2004 police surveillance followed the offender from Sydney to the crop site at Narrabri.”
The statement also contained the following material at paragraph 10:
“Police had previously monitored telephone calls between Penny Loisos and the offender during the period 26 March 2004 to 8 April 2004. During this time the offender rang the property at Narrabri and at various times spoke to Penny Loisis’ [sic] and other co-offenders, who were on the property.”
The applicant sought to repeat material relating to the involvement of his father and his relationship with his father, in this Court. However, he did so only “in support of the judge’s finding that the applicant was not a principal in the enterprise”. So much may be accepted. The thrust of the challenge to the sentence imposed was that, even for a person who had a major role in management, but was not the principal, the sentencing judge erred in starting with a sentence of 12 years, before allowing a reduction of 25% for the plea of guilty.
Precisely how his Honour reached the figure of 12 years is somewhat obscure, calling in aid the principle of “instinctive synthesis” referred to by the High Court in Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048, which his Honour stated (p 12) “has given support to the proposition that a judge, in arriving at a sentence, should take account of all of the relevant factors and arrive at a single result, which takes due account of them all”. The phrase “instinctive synthesis” must be understood in its historical context, as explained by the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [76]:
“In R v Thomson (2000) 49 NSWLR 383 at [54]-[113], Spigelman CJ reviewed the state of the authorities in Australia that deal with the ‘two-stage’ approach of arriving at a sentence in which an ‘objective’ sentence is first determined and then ‘adjusted’ by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach.”
However, as their Honours explained at [75]:
“This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.”
In Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291, at [17], after noting the “complex of inter-related considerations” referred to by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 this Court stated:
“The same comment applies, with equal force, to the assessment of the “overall criminality” involved in the offences. It gives support to the view that sentencing, while requiring transparency, involves a synthesis of inter-related considerations. It involves a value judgment, which should be articulated so far as possible. That attempt should not be avoided by describing the outcome as ‘instinctive’. It is inevitably instructed by a knowledge of comparable cases and relevant sentencing principles. A result based on knowledge and experience is the antithesis of ‘instinctive’. Nevertheless, the term is used to describe the effect of weighing a number of disparate elements to reach a considered conclusion.”

The exercise required in this case involves placing the criminality of the applicant within an appropriate range, which is broadly derived by reference to the seriousness of the offence, the sentence prescribed by the Drugs Misuse Act and sentences given in comparable cases. It hardly needs repeating that this is an imprecise exercise.
This exercise is required to ensure adherence to the basic underlying principle of sentencing that like offences and offenders should be treated in like manner. It is for that reason that, despite the comments by the High Court in Wong and other cases, sentencing judges frequently assess overall criminality and then provide a “discount” on account of a plea of guilty or assistance provided to the authorities, in accordance with an established range. There was no challenge to that practice in the present case and, applied with due regard to the circumstances of the particular case, it clearly has much to recommend it in terms of consistency of approach.
Particular reliance was placed, in the course of submissions, on the recent decision of this Court in two matters known as Giammaria v Regina; Karagiannis v Regina [2006] NSWCCA 63. This case was treated as of particular relevance because the two offenders were involved the same plantation as the applicant. Mr Karagiannis was involved in crop C, which was significantly smaller than crop B and involved 450 cannabis plants. Further, Mr Karagiannis was described as a shareholder, but not as a principal, nor was he to be regarded as a manager. The sentencing judge stated:
“He is to be regarded as someone who was one level up from a mere worker, and someone who was going to get some additional benefit. … I think he should be regarded as someone having a minor management role, less than that of Mr Demitrios Hantzis in relation to crop B … .”
This Court (Sully and Latham JJ) concluded that a head sentence of eight years before appropriate discounting revealed error. Their Honours substituted a calculation based on an undiscounted head sentence of six years, reduced to four years six months for the plea of guilty.
The applicant was involved in a plantation which was almost twice the size, although the comparison should, as indicated by Sully J in Karagiannis, be treated as “of indicative, rather than of prescriptive, value”: at [31]. Furthermore, the trial judge, although required to undertake a somewhat awkward exercise of dealing with particular offenders on the basis of different evidence, appears to have treated the applicant as having a more significant management role.
The applicant also relied upon the range considered appropriate by this Court in R v Mangano (2006) 160 A Crim R 480. The offender in that case was convicted for taking part in the cultivation of a very significant plantation involving almost 10,000 plants. It would appear, broadly speaking, that the role of the applicant was not dissimilar to that of Mr Mangano, each in relation to their respective plantations. Mr Mangano also sought to have a further offence of knowing involvement in cultivation taken into account. The plantation involved in the Form 1 offence contained more than 6,000 plants, although less was known about his activities in relation to that matter.
It is also significant that Mangano involved a Crown appeal. Nevertheless, this Court said that a sentence, prior to reduction for a plea and assistance to authorities, would have been 10 years imprisonment. Taking account of the differential size of the plantations involved, and taking into account the need on a Crown appeal to sentence at the bottom of the appropriate range, it would appear that the trial judge in the present case has placed the applicant at a similar level of criminality as Mr Mangano, if not at a higher level.
Each of the authorities referred to took into account other earlier authorities with respect to sentencing of similar offenders, but no greater level of precision or accuracy will be achieved by expanding the class of comparable cases. Taking account of the objective level of criminality, and the subjective circumstances of the applicant (as acknowledged by the sentencing judge) and the supply charge, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the starting point of 12 years adopted by his Honour is too high. As noted above, although the size of the crop was at the higher end of the commercial range, the applicant had no prior convictions and was himself a manager rather than a principal. Further, the Form 1 offence, while involving an indictable quantity of cannabis leaf, did not involve a commercial quantity and indeed was less than half the commercial quantity. These factors, viewed against the background of the comparable earlier authorities, indicate that an appropriate sentence, without reduction for a guilty plea, would have been eight years. After reduction for the plea of guilty, that would give a sentence period of six years. No basis was given for interfering with the proportion of sentence to be served in custody and accordingly a non-parole period of three years and four months should be fixed, with an additional period, being the balance of the sentence, of two years and eight months.
The sentencing judge directed that the applicant was to be released at the conclusion of the non-parole period and required him to submit to supervision of the probation and parole service. Because the sentence exceeded three years, that direction was beyond power. Counsel for the applicant conceded that it could not be sustained: see Sentencing Procedure Act, s 50.
His Honour also recommended that the applicant be “classified as soon as possible to a minimum security institution”. No doubt the prison authorities will have noted the recommendation.
Failure to sentence for second offence
Before imposing the fresh sentence, it is necessary to return to the question of the second charge, for which the applicant was not sentenced.
It would be highly undesirable to leave outstanding a charge which should properly have been dealt with at the same time as the charge for which the applicant was sentenced, because it involved the same factual substratum. Because this Court is resentencing this applicant, it would be desirable, if power exists, for the Court to deal with the outstanding charge.
Although the submissions in this Court did not directly address relevant statutory provisions, it would seem that any power the Court has must be found in s 7(1A) of the Criminal Appeal Act. That provision, dealing with appeals against sentence, does not appear to have been the subject of judicial consideration since its commencement in August 2003. However, a related provision with respect to convictions, contained in sub-s (1), has been the subject of consideration to which reference will be made below. It is appropriate, therefore, to set out both subsections in full:
7 Powers of court in special cases
(1)If it appears to the court that an appellant on an appeal under section 5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted.
(1A)If on an appeal against a sentence under section 5(1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:
(a)in relation to any offence charged in any other count or part of the same indictment, or
(b)in relation to any offence charged in any count or part of any other indictment, or
(c)in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986, or
(d)in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986,
and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.
The operation of the equivalent in Victoria of sub-s 7(1), namely the Crimes Act 1958 (Vic), s 569(1), has been considered by the High Court in two cases, namely Ryan v The Queen (1982) 149 CLR 1 and McL v The Queen [2000] HCA 46; (2000) 74 ALJR 1319. Each case involved an offender convicted on multiple counts, where an appeal court had quashed some, but not all of the convictions. The question raised in Ryan was whether the court was then entitled to interfere with the sentences passed on other convictions, in circumstances where the appeal did not allow it to say whether the offender had been “properly convicted” on the other counts. There was sufficient disparity in the approaches adopted by the five members of the Court in Ryan that three members of the Court in McL (McHugh, Gummow and Hayne JJ) considered that there was no uniformity of reasoning sufficient to constitute a ratio decidendi: at [63]. However, the joint judgment of Gleeson CJ, Gaudron and Callinan JJ in McL quoted with apparent approval the following passage from the judgment of Brennan J in Ryan at [23] (being [32] in McL):
“On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands.”
That reasoning is consistent with the explanation given in the joint judgment of McHugh, Gummow and Hayne JJ in McL at [75]:
“In modern times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that subsection if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle.”
In the joint judgment of Gleeson CJ, Gaudron and Callinan JJ in McL, it is noted that counsel had taken the Court to the history of English authority upon the equivalent provision in that country. Their Honours continued at [31]:
“One of the reasons why counsel went to this history was to support a submission that, when properly understood, s 569(1) has no application to a case such as the present, where separate sentences have been imposed in respect of each of a number of counts in an indictment. According to this argument, the provision was intended to apply only where a general sentence is imposed in respect of all counts collectively or, perhaps, where a sentence is imposed in respect of the most serious of a number of offences and no sentence is imposed in respect of others. This submission cannot be accepted. A similar argument was expressly considered and rejected in Ryan by Stephen J (at p 9) and Brennan J (at p 25). As Brennan J observed, although general or global sentences in the case of multiple offences have, in the past, been common in England, they are virtually unknown in Victoria, and may not be permissible. It is unnecessary to resolve the latter question. It suffices to say that current sentencing practice in Victoria requires the imposition of individual sentences in relation to each count upon which an appellant is convicted unless, of course, it is decided that for some sufficient reason no sentence should be imposed in relation to a particular offence.”
In the present case, it is clear that s 7(1) does not apply, because there has been no challenge to any conviction. Section 7(1A) is engaged, because this Court is varying a sentence. The only outstanding question is whether it can pass sentence on another count, on which no sentence has been passed at trial, and where, accordingly, there is no sentence to “quash or vary” and any fresh sentence would not be a sentence “in substitution for the other sentence”.
It would seem a surprising result if sub-s 7(1) has application where no sentence has been imposed on a count other than one which has been quashed on appeal, but that sub-s (1A) does not apply in such circumstances. The logic underlying the two provisions and their statutory purpose, are clearly the same, namely that interference in one aspect of an overall sentence may cause anomalies if the remainder of the sentence or sentences cannot be addressed. At least in relation to sub-s (1) there is an assumption that no appeal has been brought in relation to the other counts or their sentences. A purposive construction would allow the Court to pass such sentence as it thinks proper in respect of another offence, even where no sentence had been specifically imposed for that offence. The underlying purpose of the provision is effected by giving it operation where a sentence has been imposed, or there has been an express decision not to impose a sentence, or where, inadvertently, no sentence has been imposed.
That construction appears to be consistent with the reference to s 167 of the Criminal Procedure Act 1986 (NSW) in relation to what is described as “any back-up offence or related offence”. Although the matter is not beyond doubt, it is at least arguable that the intended reference to matters dealt with under s 167 could pick up the power of a trial court, where a person is acquitted on an indictable offence, to deal with a back-up offence, so as to confer a similar power on this Court.
Looked at from a slightly different perspective, it would be curious if sub-s 7(1A) operated where a trial judge had properly sentenced an offender in respect of other counts, but not in circumstances where the trial judge had failed to do so or in circumstances where, whether rightly or wrongly, had deliberately refrained from sentencing on a particular count.
One approach is to treat the trial judge as having inadvertently imposed a “general rule sentence” on account of the criminality covered by the charges then before him to which the applicant had pleaded guilty. On that view, there is a relevant “sentence” which may be varied pursuant to sub-s 7(1A). Because this approach is consistent with the purpose of the provision, as explained above, and avoids anomalies, the Court should, in my view, adopt that construction and impose a separate sentence in relation to the second charge.
The charge for which the applicant was not sentenced was knowingly taking part in the supply of a commercial quantity of cannabis leaf. Inappropriately, no specific quantity was identified. The statement of agreed facts identified three charges, the second of which is “knowingly take part in the supply of a commercial quantity of cannabis – 850 plants”. This is at odds with the description of the offence in the court attendance notice. As explained by the prosecutor in the course of the hearing of the appeal, the act of supply relied upon was “arranging, transporting and distribution” of cannabis between the dates identified, namely 7am on 1 April and 7am on 8 April 2004 “at Narrabri”. Because this is clearly not the cannabis found at the applicant’s home, it must be assumed that the supply involved steps taken in respect of the plants which remained at the place of cultivation. On one view, the charge would be satisfied by a factual finding that the applicant had the cannabis plants “in possession for supply”. That is a view favourable to the applicant, but it is difficult to see any other factual foundation on which the charge could be established beyond reasonable doubt, on the material available to the trial judge and to this Court.
In the result, there is a complete overlap of criminality in relation to the two charges. It is unlikely that the applicant was dealt with in relation to the cultivation on any basis other than an ultimate purpose of supplying cannabis leaf for profit. Accordingly, the applicant having been appropriately sentenced for that conduct on the first charge, it would not be appropriate to require him to serve any additional period of imprisonment in relation to the second charge. However, if the second charge stood alone, it would be necessary to impose a sentence for it. It is somewhat artificial to speak of supply over a period of six days, in circumstances where none of the drug in question was transported elsewhere, nor was there any evidence given of arrangements having been made to do so. On the other hand, a significant volume of cannabis was involved.
In the present circumstances, given the somewhat anomalous circumstances in which the Court is called upon to exercise its powers, the public interest in the administration of justice would be satisfied by the imposition of a fixed term of 2 years, to be served concurrently with the sentence on the first count.
Sentencing
In accordance with the reasoning set out above, the following orders should be made:
(1)Extend time within which the application for leave to appeal might be filed up to and including 2 June 2006.
(2)Grant leave to appeal against the sentence imposed by the District Court on 10 June 2005 in relation to the first charge of cultivating a commercial quantity of cannabis plants.
(3)Allow the appeal and set aside the sentence imposed on 10 June 2005 and in lieu thereof sentence the applicant as follows:
(a)in relation to the cultivation charge, sentence the applicant to a non-parole period of three years and four months to date from 8 April 2004 and to expire on 7 August 2007, with a balance of sentence of two years and eight months to commence on 8 August 2007 and to expire on 7 April 2010;
(b)in relation to count 2, sentence the applicant to a fixed term of 2 years imprisonment to date from 8 April 2004, which sentence will have expired on 7 April 2006.
HIDDEN J: I agree with Basten JA.
BELL J: I agree with Basten JA.

**********

LAST UPDATED: 04/12/2006