Nov v The Queen
[2020] VSCA 11
•7 February 2020
COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0127
| MARK NOV | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 January 2020 |
| DATE OF JUDGMENT: | 7 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 11 |
| JUDGMENT APPEALED FROM: | [2019] VCC 732 (Judge Trapnell) |
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CRIMINAL LAW – Appeal – Sentence – Combination sentence imposed – Calculation of pre-sentence detention (‘PSD’) – While on remand applicant served sentence for unrelated offending – Period of separate sentence erroneously counted as PSD – Power to impose combination sentence subject to limit on period of imprisonment – Corrected PSD figure caused limit to be exceeded – Sentence unlawful – Resentenced – Period of custody reduced, community correction order unchanged – R v Broad [1999] 3 VR 31; [1999] VSCA 149 applied – Director of Public Prosecutions v TY[No 2] (2009) 24 VR 705; [2009] VSCA 226, Younger v TheQueen [2017] VSCA 199 considered – Sentencing Act 1991 (Vic) ss 18(1), 44(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Lenthall | Papa Hughes Lawyers |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Acting Solicitor for Public Prosecutions |
MAXWELL P
WHELAN JA:
Summary
Ordinarily, an error in the calculation of pre-sentence detention (‘PSD’) under s 18(1) of the Sentencing Act 1991 (the ‘Act’) is not a sentencing error. The error does not affect the validity of the sentencing decision itself since, as this Court said in Director of Public Prosecutions v TY [No 2],[1] a declaration of PSD is not part of the sentence imposed but rather an official statement of time served under the sentence.[2]
[1](2009) 24 VR 705; [2009] VSCA 226 (‘TY’).
[2]Ibid [50]–[52].
There is, however, an important exception to that rule, where the sentencing court is considering the imposition of a ‘combination sentence’ — that is, a term of imprisonment combined with a community correction order (‘CCO’). The length of PSD directly affects the Court’s power to impose such a sentence since, under s 44(1), the Court may only impose a CCO in addition to a term of imprisonment
if the sum of all of the terms of imprisonment to be served (after deduction of any period of custody that under s 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.
In the present case, the judge sentenced the applicant to 598 days’ imprisonment, together with a 3 year CCO. The PSD was declared to be 233 days and, after deduction of that period in accordance with s 44(1), the term of imprisonment was 365 days. The requirements of s 44(1) thus appeared to have been complied with.
In this Court, the applicant has contended — and the Crown has conceded —that the PSD calculation was not in accordance with the decision of this Court in R v Broad.[3] It included a period of 31 days which, upon the application of Broad, should not have been included. Deducting the corrected PSD period of 202 days from the 598 days’ imprisonment, in accordance with s 44(1), results in a term of imprisonment of 396 days. The sentencing decision was therefore beyond the judge’s power under s 44(1).
[3][1999] 3 VR 31; [1999] VSCA 149 (‘Broad’).
This position arose because, while the applicant was on remand for the offences the subject of this application, he was sentenced for unrelated offences to 31 days’ imprisonment, which he then served during the period of remand. Defence counsel submitted to the judge that the period of 31 days should be treated as PSD for the purpose of the subject offences. The prosecutor made no submission to the contrary.
Upon the basis of the authorities discussed below, two different circumstances must be clearly distinguished, as follows:
(a) where during a period of remand a prisoner serves a sentence imposed for other offences, the period served under that sentence does not count as PSD for the purposes of the sentence imposed for the remand offences: Broad; and
(b) where an offender is serving two concurrent sentences for different offences, then in the event of the offender being resentenced (on appeal) on one of those offences, the entire period counts as PSD for the purposes of that sentence: TY;[4] Younger v The Queen.[5]
[4](2009) 24 VR 705; [2009] VSCA 226.
[5][2017] VSCA 199 (‘Younger’).
In the present case, both parties before us submitted that the period of 31 days fell into the first category, not the second, and hence could not be counted as PSD. By reason of this Court’s decision in Broad, we have accepted that submission. For these reasons, the sentence which the judge purported to impose was not authorised by s 44(1).
The appeal must therefore be allowed and the applicant resentenced. Because of the seriousness of the offending, and the applicant’s relevant and extensive criminal history, the only change we would make is to reduce the period of incarceration from 598 to 567 days. We would re-impose the 3 year CCO, on the same conditions as the judge imposed.
PSD – the relevant facts
The offending for which the applicant was sentenced on 24 May 2019 was committed between 8 January 2018 and 12 April 2018. The applicant was arrested and bailed on 12 April 2018.
On 1 May 2018 the applicant was remanded on unrelated matters. He was eventually dealt with on those unrelated matters on 11 October 2018 and was fined. He accordingly spent 155 days in custody on those unrelated matters. The sentencing judge took that period into account on the basis of the principles set out in R v Renzella.[6] That issue does not affect the PSD declaration and, in this context, can be put to one side.
[6][1997] 2 VR 88 (‘Renzella’).
The applicant was remanded on the offences the subject of the application now before this Court on 3 October 2018, after a contested committal. On 14 March 2019 the applicant was sentenced to 1 month’s imprisonment for breach of a CCO. Between 14 March 2019 and 13 April 2019, the applicant served 31 days’ imprisonment under that sentence.
In the course of the plea hearing, counsel for the applicant submitted that the period of 31 days during which the applicant was serving the sentence of imprisonment imposed on 14 March 2019 was properly to be taken into account as PSD in relation to the relevant matters. In that respect, counsel relied upon this Court’s decision in Younger.[7] Submissions to that effect, relying on Younger, were made on behalf of the applicant both at the plea hearing, and during a further hearing to clarify the PSD, held immediately prior to the imposition of sentence. Counsel for the prosecution made no submission to the contrary.[8]
[7][2017] VSCA 199.
[8]Ibid 93.
As noted earlier, the applicant now contends, and the respondent agrees, that an error was made in including those 31 days in the PSD under s 18 of the Act. Both counsel now submit that time served under the 14 March 2019 sentence does not constitute PSD within the meaning of s 18 of the Act, by reason of this Court’s decision in Broad.[9]
[9][1999] 3 VR 31; [1999] VSCA 149.
Broad, TY and Younger – calculation of PSD where there is ‘overlap’
Prior to 1997, s 18 of the Act provided that PSD could only be declared in relation to a period served which related to the subject offences and ‘for no other reason’. In 1997 the legislation was amended to remove those words. The effect of that amendment was the subject of this Court’s decision in Broad.
Broad concerned an offender who had committed two sets of offences, referred to as the ‘October offences’ and the ‘January offences’ respectively. The offender was a young offender and PSD was accordingly governed by s 35 of the Act, but the Court said the analysis under ss 35 and 18 was the same.
The offender was sentenced to 8 months in a youth training centre on the October offences at the Magistrates’ Court on 2 February 1999. An order was made the effect of which was to then remand the offender on the January offences to the County Court. He was sentenced on the January offences at the County Court on 25 May 1999. The sentence imposed was 10 months in a youth training centre, to be served concurrently with the previous 8 months’ sentence.
In the County Court PSD of 120 days was declared, which was the full period from the date of arrest until the date of sentence, including the period when the offender was serving the sentence on the October offences. An application was later made to vary the declaration of PSD so as to reduce it to eight days. The judge ordered that variation. There was then an appeal to the Court of Appeal as to whether the order varying the PSD had been correct. The Court of Appeal held the variation had been correctly made.
Brooking JA, with whom the other members of the Court agreed, said that if the provisions were given their ‘literal meaning’ the result would be ‘startling’. Punishment for an unrelated offence would also count as PSD. He considered this to be ‘manifestly unreasonable and contrary to the public interest’. The capacity to ‘otherwise order’ did not constitute a satisfactory answer.[10]
[10]Broad [1999] 3 VR 31, 33 [8]; [1999] VSCA 149, [8].
Brooking JA said that the amendment removing the words ‘for no other reason’ had been prompted by a concern to address the situation where there were two remand warrants.[11]
[11]Ibid 34 [10].
Brooking JA observed that it could not be simply said that the legislation as to PSD did not apply to a period of a sentence because, where the Court of Appeal resentences, time served under the quashed sentence does fall within the relevant provision. He went on:
But, subject to this, it may be said that ss 18(1) and 35(1) are inapplicable to periods of detention during which the person being sentenced was serving a sentence.[12]
[12]Ibid 34–5 [11].
In TY, this Court was considering a position where the offender had been convicted of murder and sentenced to a term of imprisonment, had then been convicted of further offences and sentenced to a term of imprisonment to be served concurrently with the murder sentence, had then had his murder conviction quashed, and had then been convicted again and resentenced. On an appeal as to sentence by the Director of Public Prosecutions, amongst other things, it was submitted that PSD could not be declared in relation to the period during which the sentence was being served on the unrelated offences because, when the appeal was allowed and the conviction quashed, it was as if the offender had never been sentenced, and he was to be treated as if he had been on remand when serving the sentence after the first murder conviction.
This Court rejected that contention. The quashing of the conviction did not alter the character of the sentence which had been served. The Court said:
In our opinion, the 11 month period was rightly counted as PSD. The trial judge was not misinformed. We do not accept the Director’s submission that the effect of the quashing the murder conviction was that both conviction and sentence were to be treated as if they had never existed, and that what had been understood — up to the point of the quashing — to be a period of imprisonment under sentence no longer had that characteristic but rather the characteristic of a period on remand. The true position is to the contrary, in our view. That is, the quashing of the murder conviction, and of the sentence imposed following the conviction, operated only from the date of the quashing. Time served under the sentence up to the date of the quashing retained its character as such.[13]
[13](2009) 24 VR 705, 710–11 [21]; [2009] VSCA 226, [21].
The Court’s analysis of the position in TY indicates that the character of the detention (whether remand or a sentence) is significant. In that context the Court referred to Broad. The Court said:
[Section] 18(1) no longer requires that the person be in custody only in relation to the offence in respect of which PSD is being calculated. Prior to its amendment in 1997, the sub-section did so provide. PSD in respect of an offence was limited to a period of time during which the person was held ‘in custody in relation to proceedings for that offence … and for no other reason’.
Thus if a person was held in custody for another reason - for example, if he or she were serving another sentence at the time - the period did not count as PSD. Section 18(1) was amended by the Sentencing and Other Acts (Amendment) Act 1997 by omitting the words ‘and for no other reason’. The fact that in R v Broad and the cases which have followed it, s 18 (1) has been held not to apply where a person is on remand for one offence whilst serving sentence for another does not mean that the omission of the words ‘for no other reason’ did not effect a substantial change in the ambit of s 18(1).[14]
[14]Ibid 715–16 [38]–[40] (emphasis added, citations omitted).
In TY this Court did not reject the conclusion in Broad that where a prisoner is on remand and is then sentenced to a term of imprisonment for unrelated offending that period is not PSD in relation to the offences for which the offender was on remand. TY does, however, hold that if the offender is serving two concurrent sentences then, on a subsequent resentence on one of them, the entire period is PSD. The Court in TY said that this did not result in ‘double dipping’ because the sentences had been ordered to be served concurrently.[15]
[15]Ibid 716 [45].
As indicated earlier, TY stands for the proposition that usually an error in the declaration of PSD is not a sentencing error which vitiates the sentence.[16] The present position is different, however, because of s 44 of the Act.
[16]Ibid 717–18 [50]–[53].
Younger was an appeal which raised a number of issues, one of which was how PSD was to be calculated where a concurrent sentence on unrelated matters of 6 months’ imprisonment had been imposed whilst the offender was serving the sentence which was under appeal. The relevant part of the judgment, upon which the sentencing judge relied on including the 31 day sentence in the PSD here, reads as follows:
During the oral hearing it was suggested that the sentence of six months’ imprisonment imposed upon the appellant in November 2016 for unrelated offending (and served concurrently with the sentence the subject of this appeal) could not be the subject of a declaration under s 18 of the Act as pre-sentence detention. By the time of this appeal the six-month sentence had been served.
As we have said, s 18 of the Act provides that any period of time during which an offender is held in custody ‘in relation to proceedings for the offence’, or ‘proceedings arising from those proceedings including any period pending the determination of an appeal’, must be reckoned as pre-sentence detention unless the court orders otherwise. Pre-sentence detention is therefore not confined to periods where the offender is in custody only because of the offence for which pre-sentence detention is being calculated.
The entire period the appellant spent in custody — from his arrest for the robbery offence to his resentencing in this Court for the robbery offence — counted as pre-sentence detention notwithstanding the fact that some of it was served concurrently with another sentence.[17]
[17]Younger [2017] VSCA 199, [68]–[70] (emphasis in original, citations omitted).
Thus, the conclusion in Younger was the same as in TY. Where an offender is in custody serving two sentences ordered to be served concurrently on unrelated matters, the PSD under s 18(1) on a resentence for one of them will include the entire period, notwithstanding that for part of that period the offender was serving a sentence on the unrelated matter. But neither authority concerned the position where an offender had been on remand and, while on remand, was sentenced to a term of imprisonment on an unrelated matter, which was the position in Broad and is the position here.
Pre-sentence detention: conclusion
The submission put to us by counsel for both parties was that the inclusion of the 31 day sentence in the calculation of PSD was erroneous. The decision in Broad requires that submission to be accepted.
Given the provisions of s 44 of the Act, the error is one which vitiates the sentence because it means that a term of imprisonment in excess of that permitted by s 44 has been combined with a CCO.
It may be that this issue should be re-considered. There may be seen to be tension between the express words of the legislation and the decisions in Younger and TY on the one hand, and Broad on the other. The capacity to ‘otherwise order’ might be seen to sufficiently address the concerns Brooking JA articulated in Broad. But, given that both parties before us took the position that Broad should be applied, this is not an appropriate occasion for such a reconsideration.
In the circumstances here, we advised the parties during the course of the hearing that leave to appeal would be granted on proposed ground 2, that the appeal would be allowed, and that we would hear submissions as to resentence. In the circumstances it is unnecessary to address the first proposed ground (manifest excess).
The relevant offending
Between January 2018 and April 2019 the applicant engaged in a series of dealings with a co-offender named Kuldip Cheema, concerning the sale of cannabis. The applicant and Cheema were attempting to arrange a transaction whereby cannabis obtained by the applicant from a supplier would be sold to a buyer known to Cheema. The applicant and Cheema discussed both quantity and price. The discussions were in terms indicating that the applicant was dealing with the potential supplier whilst Cheema was dealing with the potential buyer. The objective was to obtain the cannabis from the potential supplier and on sell it to the buyer realising a profit for the applicant and Cheema. The quantities discussed varied between five and 10 pounds and the prices discussed were between $2,200 and $2,300 per pound for the supply and $2,400 and $2,800 per pound for the on sale.
The applicant was charged with attempted trafficking because the evidence did not indicate that there had been a concluded transaction before 12 April 2018 when police executed a search warrant at the applicant’s address and arrested him.
Upon execution of the search warrant objects were located which contained traces of methylamphetamine and the applicant admitted use of methylamphetamine.
The applicant pleaded guilty to one charge of attempted trafficking in cannabis and to separate charges of possession and use of methylamphetamine. On the trafficking charge, he was sentenced to 598 days’ imprisonment and a 3 year CCO. He was sentenced to 14 days and 1 day respectively on the methylamphetamine charges, with no cumulation.
Personal circumstances and criminal history
The applicant is 45 years old. He is the eldest of four brothers. He was born in Western Kosovo and came to Australia with his family when he was five years of age.
He left school after completing Year 9 and worked for a number of years in his father’s bakery. That business was sold after his father became ill. He then worked in the security industry for approximately four years. He has had little employment since then.
When aged 23 the applicant travelled to Kosovo where he met his wife. She migrated to Australia in 1998. They have three children who were aged at the time of sentence 19 years, 17 years and 13 years.
The applicant retains the support of his family. He has undertaken rehabilitative programs, and has returned negative drug tests while in custody.
The applicant has many prior convictions for drug offences, dishonesty offences, and weapons and firearms offences. His prior drug offences include trafficking and trafficking related offending.
The Victoria Police criminal history report, and an extended pre-sentence assessment–outcome report dated 16 April 2019 from the Department of Justice and Community Safety (‘the DoJ report’), which was ordered by the sentencing judge, reveals a long history of continuous offending, notwithstanding the imposition of four terms of imprisonment, and three CCOs, all of which the applicant has breached.
The applicant’s offending begins in 2003 but we will confine ourselves to the last 10 years.
At the Melbourne County Court on 3 December 2010, the applicant was sentenced to a term of imprisonment of 2 years 2 months with a non-parole period of 1 year for offences of possessing a substance for the manufacture of a drug of dependence, cultivation of a narcotic plant, and possession of amphetamine. The DoJ report indicates that the applicant was released on parole and that he successfully completed that parole.
On 27 November 2013 at the Melbourne Magistrates’ Court the applicant was convicted of a large number of drug, dishonesty, driving and weapons offences and was sentenced to a CCO of 12 months. The DoJ report indicates that he breached that order by non-compliance with conditions and further offending.
At the Sunshine Magistrates’ Court on 26 May 2015 the applicant was sentenced to a CCO of 18 months on drug, dishonesty and weapons offences. The DoJ report indicates that he breached that order by non-compliance with conditions and further offending.
On 21 December 2015, the applicant was sentenced to a term of imprisonment of 90 days (time served) in relation to contravention of the CCOs made in 2013 and 2015 and the offences for which those orders were imposed.
On 19 July 2016 the applicant was sentenced to a term of imprisonment of 23 months to be followed by a CCO of 2 years at the Melbourne Magistrates’ Court on a number of drug, weapons, and dishonesty offences. The drug offences included the cultivation of a narcotic plant and trafficking methylamphetamine. He appealed that order to the County Court. On 2 September 2016 the appeal was allowed but the substance of the sentences imposed remained unchanged, being a term of imprisonment of 23 months followed by a 2 year CCO. A condition in relation to community work imposed in the Magistrates’ Court was not imposed in the County Court. According to the DoJ report, the applicant breached that CCO by further offending on two occasions. The sentence on 14 March 2019 in the County Court of 1 month imprisonment was in relation to that contravention.
The DoJ report concludes that the applicant is a high risk of re-offending. It nevertheless finds him suitable for a further CCO, should the Court consider it appropriate to impose one. The report says that it is ‘noteworthy’ that the applicant did comply with the attendance and program requirements of his last order, but contravened it by re-offending. The report recommends the imposition of conditions on any such order which essentially reflect the conditions which the sentencing judge imposed.
Approach of the sentencing judge
The sentencing judge gave clear and cogent reasons for the sentence which he imposed.[18] He set out the circumstances of the offending.[19] He referred to the maximum penalty for the offence of attempted trafficking, being 15 years’ imprisonment, which he said showed ‘unambiguously’ how seriously the community, through Parliament, viewed the offence.[20]
[18][2019] VCC 732 (‘Reasons’).
[19]Ibid [6]–[20].
[20]Ibid [21].
The judge said that the applicant’s offending involved him playing ‘a significant role in attempting to organise a transaction or transactions’ for the sale of cannabis, and that the applicant’s motivation was financial gain. He concluded that the offence was serious and that the applicant’s moral culpability was high.[21] He observed that general deterrence, denunciation and just punishment must be given primacy.[22]
[21]Ibid [24].
[22]Ibid [25].
The judge set out the applicant’s personal circumstances and summarised his prior criminal history.[23]
[23]Ibid [25]–[37].
The judge said that there had been a guilty plea at a relatively early stage and that that had a utilitarian benefit.[24] The judge said he was unable to find that the applicant had demonstrated true contrition and remorse over and above the remorse implicit in the guilty plea.[25]
[24]Ibid [39]–[40].
[25]Ibid [40].
The judge referred to the cooperation which the applicant had given by making admissions, and to the 155 days of ‘Renzella’ time which he said he took into account.[26]
[26]Ibid [42].
The judge said that the applicant is a high risk of re-offending and that in those circumstances he needed to give ‘significant weight’ to specific deterrence and protection of the community. He said that he could only take ‘a very cautious approach’ in relation to prospects of rehabilitation.[27]
[27]Ibid [46].
The judge observed that the applicant had demonstrated an ability to undergo rehabilitative programs and appeared to have remained drug free whilst in custody. He said that the applicant had been found suitable for a further CCO.[28]
[28]Ibid [47]–[48].
The judge said that he had had regard to current sentencing practice and referred again to the importance of general deterrence and specific deterrence in the particular case.[29]
[29]Ibid [49]–[55].
Before imposing sentence, the judge concluded as follows:
Attempting to traffick in cannabis in the manner that you did in this case is a serious crime, however I am satisfied that in the light of the circumstances of your offending conduct, your personal circumstances and the protective measures which you have in place upon your release from custody, together with the steps you have taken in custody towards your rehabilitation, that the purposes for which these sentences are imposed can be achieved by imposing a community correction order together with a sentence of imprisonment. The community correction order will commence on your release from custody.[30]
[30]Ibid [55].
Submissions on resentence
Before us, counsel on behalf of the applicant submitted that when one took into account the 155 days of ‘Renzella’ time, the 31 day sentence for the CCO contravention, and the 439 days of correctly calculated PSD as at the date of the hearing of the application for leave to appeal, the applicant had spent a total of 626 days in custody. It was submitted that the time already served was sufficient, that no further imprisonment should be imposed, and that a CCO should not be imposed in addition to the term already served.
The applicant relied upon what was said to be the small amount involved in the trafficking, the submission being that this trafficking offence could have been dealt with in the Magistrates’ Court. Reference was made to the fact that there was only one transaction.
It was submitted that the applicant was entitled to the benefit of his guilty plea and the fact that he had made admissions. It was conceded that the applicant has an extensive criminal history and that, in the circumstances, specific deterrence is important, but it was submitted that any additional sentence beyond the time already served would be unwarranted. Reference was made to sentencing statistics and to what were said to be two comparable cases, being Director of Public Prosecutions v Willis[31] and El Achkar v The Queen.[32]
[31][2009] VSCA 14.
[32][2016] VSCA 209.
In his written case on the proposed manifest excess ground, the applicant submitted that the CCO was unnecessarily burdensome and punitive. The submission focused particularly upon the duration of the order (3 years) and the community work component (600 hours).
It was submitted on behalf of the respondent that the sentencing judge’s analysis of the position, with the exception of the calculation of the PSD, was correct and should be adopted. The judge was right to conclude that there was a high risk of re-offending and that one could only be cautious as to the applicant’s prospects of rehabilitation. The motivation was financial gain, and the applicant’s culpability was high. The cases said to be comparable were not in fact comparable, especially in relation to prospects of rehabilitation. The condition which had been imposed of 600 hours of community work included time spent in treatment and rehabilitation.
Resentence
With the exception of the issue of the PSD, we would respectfully adopt the sentencing judge’s analysis of the matters relevant to the sentence to be imposed in this case.
The applicant’s criminal history is relevant and extensive. He is a high risk of re-offending. One can only be cautious as to his prospects of rehabilitation, notwithstanding the work he has done in custody and the family support which he retains. Whilst the quantities involved were not very large, the transaction was a form of ‘wholesale’ commercial drug trafficking whose motivation was financial gain. The applicant’s culpability was high.
It is significant, as the sentencing judge observed, that the maximum penalty for the offence of attempting to traffick in a drug of dependence is 15 years’ imprisonment.
It must be said that it was unusual to order a CCO in a case such as this, given the applicant’s history. The sentencing judge explained his reasons. The report which he obtained expressed the opinion that, notwithstanding the applicant’s history, he was suitable for a further order, and described it as noteworthy that on the last order he had complied with the attendance and program requirements. No doubt that is why the judge was prepared to adopt the course which he did. In all the circumstances, we consider that this Court should adopt the same course.
Accordingly, apart from the correction of the declaration of PSD and a consequent reduction in the term of imprisonment, we would impose the same sentence as the sentencing judge on charge 1. Thus, we would resentence the applicant on charge 1 to a term of imprisonment of 567 days and a 3 year CCO on the same conditions as were imposed by the sentencing judge. Otherwise, we would confirm the sentences and orders made by the sentencing judge, resulting in a total effective sentence of 567 days’ imprisonment with a 3 year CCO.
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