Jamie Peter Dolman v The Queen
[2010] NSWCCA 137
•30 July 2010
New South Wales
Court of Criminal Appeal
CITATION: Jamie Peter DOLMAN v R [2010] NSWCCA 137 HEARING DATE(S): 11 December 2009
JUDGMENT DATE:
30 July 2010JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 2; Johnson J at 27 DECISION: Leave to appeal granted, appeal allowed. Sentence for ongoing supply of prohibited drug quashed. In lieu, taking into account the matters on the Form 1, applicant sentenced to a non-parole period of 1 year and 9 months, to commence on 16 September 2009 and to expire on 15 June 2011, and a balance of term of 1 year and 3 months, to commence on 16 June 2011 and to expire on 15 September 2012. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - ongoing supply of methylamphetamine - Form 1 matters - sentence accumulated upon sentence following revocation of s 12 bond - error in manner in which head sentence arrived at - special circumstances arising from accumulation LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985CATEGORY: Principal judgment CASES CITED: R v Tobar [2004] NSWCCA 391, 150 A Crim R 104
R v Suaalii [2005] NSWCCA 206
R v Mauai [2005] NSWCCA 207
R v Clarke [2009] NSWCCA 49PARTIES: Jamie Peter DOLMAN (Applicant)
REGINA (Respondent Crown)FILE NUMBER(S): CCA 2008/12740 COUNSEL: M Johnston (Applicant)
V Lydiard (Respondent Crown)SOLICITORS: S O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Resondent Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2006/12740 LOWER COURT JUDICIAL OFFICER: Toner DCJ LOWER COURT DATE OF DECISION: 12 September 2008
2008/12740
Friday 30 July 2010McCLELLAN CJ at CL
HIDDEN J
JOHNSON J
1 McCLELLAN CJ at CL: I agree with Hidden J.
2 HIDDEN J: The applicant, Jamie Peter Dolman, seeks leave to appeal against sentence, having been sentenced to terms of imprisonment for drug offences at Taree District Court on 12 September 2008. To understand the sentencing order it is necessary to sketch a little of his criminal history.
3 In May 2006, he was sentenced in the Local Court to short terms of imprisonment for a number of charges of possessing a prohibited drug and a charge of attempting to use such a drug. He appealed against those sentences to the District Court, and on 23 October 2006 another judge quashed those sentences and gave him the benefit of a bond for 18 months, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, on each charge. He was called up for breaches of those bonds by the commission of further offences, and on 27 November 2007 the present sentencing judge imposed a suspended sentence of imprisonment for 2 years, pursuant to s 12 of the Crimes (Sentencing Procedure) Act, directing that he enter into a good behaviour bond for the same period.
4 In March 2008, while subject to those bonds, he committed the offences the subject of this application. He pleaded guilty to supplying a prohibited drug, methylamphetamine, on an ongoing basis, an offence under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 20 years imprisonment. He asked his Honour to take into account on a Form 1 three further offences: two of supplying a prohibited drug and one of goods in custody. He had been in custody for those offences since his arrest on 17 March 2008.
5 The sentencing judge revoked the s 12 bond for the earlier drug offences, and imposed a term of imprisonment for 2 years, comprising a non-parole period of 1 year and 6 months, to commence on 17 March 2008 and expire on 16 September 2009, and a balance of term of 6 months. For the offence of ongoing supply, taking into account the Form 1 matters, his Honour imposed a term of imprisonment of 3 years and 4 months, comprising a non-parole period of 2 years and 6 months, to commence on 16 September 2009 and expire on 15 March 2012, and a balance of term of 10 months. The aggregate sentence, in round figures, was imprisonment for 4 years and 10 months with a non-parole period of 4 years.
Facts
6 The offence of ongoing supply and the offences on the Form 1 were committed at Taree in March 2008. The facts can be stated shortly. On one occasion on 14 March and two occasions on 17 March, the applicant supplied methylamphetamine to an undercover police officer. On the first two occasions the transactions were arranged by a co-offender, acting as intermediary. Each transaction involved the sale of a small quantity of methylamphetamine, ranging between .2 and .3 of a gram, for $50.
7 The applicant was arrested on 17 March, after the second transaction that day. He was found to be in possession of a number of small resealable bags containing what was found, on analysis, to be .72 grams of heroin and .34 grams of methylamphetamine. This constituted the two offences of supplying a prohibited drug on the Form 1. He was also in possession of $455 in cash, the proceeds of supplying drugs, giving rise to the offence of goods in custody.
8 His Honour found the offence of ongoing supply to be towards the bottom of the range of objective seriousness. He described it as “a small scale operation of limited duration”, and noted that there was no suggestion of any “great financial gain”. He accepted that the applicant was a drug user, but found that his motive for committing the offence was not to feed his habit. The applicant gave evidence that he committed the offence to raise money for a bond for rental accommodation for himself and his partner and, in the absence of any other evidence, his Honour accepted that account. He found that his intention was “to obtain money, even if a modest sum”.
Subjective case
9 The applicant was 35 years old at the time of the offences, and is now 37. He has a lengthy criminal history, comprising mainly offences of dishonesty and drug offences. All were dealt with summarily, his prior appearances in the District Court having been on appeal from the Local Court. On a number of occasions he was sentenced to terms of imprisonment. On other occasions he was placed on conditional liberty of one form or another, including earlier suspended sentences, but he continued to re-offend. He had no previous convictions for supplying prohibited drugs. Nevertheless, his Honour found the criminality of the present offences to be “significantly aggravated” by the fact that he was subject to a s 12 bond at the time.
10 His partner gave birth to their child, a daughter, while he was in custody in relation to these matters. Otherwise, his subjective case did not assist him. At the time of his call up for breach of the s 12 bond, he had given evidence of his intention to pursue drug rehabilitation and to move away from the Taree area to “start his life afresh”. From the evidence he gave in the present sentence proceedings, it is apparent that he had taken no positive steps towards his rehabilitation. As his Honour put it in his remarks:
- “I should note that he does not appear to have done anything that he promised me he would do when he appeared before me in November, last year. Nothing.”
11 His Honour allowed a 25% discount for the applicant’s plea of guilty. He rejected a submission on behalf of the applicant that there were special circumstances arising from the need to foster his rehabilitation, particularly in the light of the birth of his child, saying that nothing had been put to him which “would suggest special circumstances”.
The application
12 Counsel for the applicant, Mr Johnston, argued the application on three grounds:
- his Honour erred in the manner in which he arrived at the sentence for the ongoing supply offence;
- the aggregate sentence fails to allow for an adequate period of parole eligibility;
- the aggregate sentence is manifestly excessive.
Ongoing supply sentence
13 Towards the end of his remarks, his Honour expressed the sentence he intended to pass for the ongoing supply as a total term of imprisonment for 3 years with a non-parole period of 2 years and 6 months. He then asked the Crown’s representative whether the “statutory ratio” was “right” in relation to that sentence. The prosecutor said that it did not appear to be. His Honour then confirmed the non-parole period of 2 years and 6 months, but vacated the total term of 3 years and substituted the term of 3 years and 4 months.
14 Clearly, by “statutory ratio” his Honour meant a non-parole period amounting to 75% of the sentence. That result was achieved by increasing the sentence from 3 years to 3 years and 4 months. By that approach his Honour fell into error, as the Crown prosecutor in this Court properly conceded.
15 It is apparent that his Honour determined the non-parole period first and then sought to arrive at the head sentence by the application of the statutory ratio. Section 44(1) of the Crimes (Sentencing Procedure) Act provides that a court, when sentencing an offender to imprisonment, “is first required to set a non-parole period for the sentence …”. However, that provision is concerned with the manner in which a sentence is pronounced, not how it is arrived at.
16 This question was considered by Simpson J, with whom Dunford J and I agreed, in R v Tobar [2004] NSWCCA 391, 150 A Crim R 104 at [31] – [39]. As her Honour put it at [38], the section requires the non-parole period “first to be specified, or pronounced”, but not to be “the first determined.” The reasoning in Tobar was applied in two subsequent cases, dealt with on the same day: R v Suaalii [2005] NSWCCA 206 at [23] – [26], and R v Mauai [2005] NSWCCA 207 at [24] – [27].
17 The error identified in those three cases was somewhat different from that in the present case. In each of those cases the sentencing judge had reflected a finding of special circumstances by increasing the balance of term of the sentence rather than reducing the non-parole period. Nevertheless, the principle which guided those decisions, affirming the primacy of the head sentence in any sentencing exercise, is applicable to the present case. As Simpson J expressed it in Tobar at [37], “the focus should still be upon the total of the sentence imposed …”. The principle was restated in Suaalii by Hislop J, with whom James and Hall JJ agreed, at [25].
18 I am satisfied that in this respect the sentencing process in the present case miscarried, and that this Court should intervene.
Parole eligibility
19 As I have said, the aggregate sentence, rounded off, is imprisonment for 4 years and 10 months with an effective non-parole period of 4 years. That non-parole period is more than 80% of the total sentence. There is force in Mr Johnston’s argument that the custodial proportion of the sentence is too high, leaving an inadequate period of parole eligibility.
20 As already noted, in the sentence proceedings the focus of the argument about special circumstances was whether the applicant’s subjective circumstances called for a longer than usual period of parole eligibility, and that appears to be the only basis upon which his Honour approached the matter. The question whether the non-parole period for the ongoing supply offence should be adjusted so as to maintain the proportion of 75% between effective non-parole period and aggregate sentence does not seem to have been considered. In my view, that is the course which should have been adopted.
21 In so saying, I am mindful that that is not a course which must be taken in every case and that, generally, a sentencing judge has a wide discretion in determining whether there should be any adjustment to the statutory ratio and, if so, to what extent: see R v Clarke [2009] NSWCCA 49, per McClellan CJ at CL (with whom James and Adams JJ agreed) at [11], [13] – [14], and the cases to which his Honour there refers. I am also mindful of the fact that, given the applicant’s criminal history, an assessment of his prospects of rehabilitation would be, at best, guarded. Nevertheless, a reasonable time should be allowed to foster his reform and I am satisfied that a period of only 10 months of conditional liberty is inadequate for that purpose.
Manifestly excessive?
22 Finally, Mr Johnston submitted that the aggregate sentence is manifestly excessive. This, he said, is the result of the manner in which the sentences were structured. Put shortly, he argued that the sentence for the earlier offences the subject of the s 12 bond and the sentence for the ongoing supply offence were severe and, that being so, the total accumulation of the latter sentence upon the non-parole period for the former was uncalled for.
23 As I am satisfied that this Court should intervene for the reasons I have already expressed, it is not necessary to decide this ground. That said, I consider that the 3 year sentence for the ongoing supply offence which his Honour originally proposed was appropriate. While it is true that the objective gravity of that offence was low, the sentence had to reflect the applicant’s criminal history and the fact that it was committed while the applicant was subject to a s 12 bond, and also had to take into account the further offences on the Form 1. Equally, while it would have been open to his Honour to direct that that sentence be partially concurrent with the earlier sentence, the circumstances of the case are such that total accumulation was also appropriate.
Re-sentence
24 I would redress his Honour’s error in determining the head sentence for the ongoing supply offence by restoring the sentence he first proposed, that is, imprisonment for 3 years. Like his Honour, I would direct that that sentence be served cumulatively upon the 18 month non-parole period fixed in respect of the 2 year sentence following the revocation of the s 12 bond. However, because of that accumulation, I would find special circumstances and adjust the non-parole period for the ongoing supply offence, so as to arrive at an effective non-parole period which is roughly 75% of the aggregate sentence. In that regard I also take into account affidavit evidence, received for the purpose of re-sentence, that the applicant has been participating in a drug and alcohol programme in custody and appears to be responding well to it.
25 The aggregate sentence would be 4 years and 6 months. 75% of that term would be about 3 years and 4 months. I would round that down to 3 years and 3 months, so as to leave a period of parole eligibility of 15 months.
26 Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentence for the offence of ongoing supply of a prohibited drug. In lieu, taking into account the matters on the Form 1, I would sentence the applicant to a non-parole period of 1 year and 9 months, to commence on 16 September 2009 and to expire on 15 June 2011, and a balance of term of 1 year and 3 months, to commence on 16 June 2011 and to expire on 15 September 2012.
I agree with Hidden J.
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