R v Camplin

[2004] NSWCCA 29

CITATION:	R v Camplin [2004] NSWCCA 29
HEARING DATE(S):	24/02/04
JUDGMENT DATE:	24 February 2004
JUDGMENT OF:	Levine J at 1; Simpson J at 2; Barr J at 3
DECISION:	1. Grant leave to appeal and allow the appeal; 2. Quash the non-parole period on the first count and substitute a non-parole period of one year nine and one half months expiring on 18 June 2005; 3. Declare that the applicant will be eligible for release on parole on 18 June 2005.
CATCHWORDS:	criminal law - sentencing - ongoing supply of amphetamine
CASES CITED:	R v Smiroldo (2000) 112 A Crim R 47
PARTIES :	REGINA Rhys Martin Price CAMPLIN
FILE NUMBER(S):	CCA 60391/03
COUNSEL:	Crown: D U Arnott Applicant: R J Button
SOLICITORS:	Crown: S E O'Connor Applicant: W Grant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0167
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

60391/03

LEVINE J
SIMPSON J
BARR J

Tuesday, 24 February 2004

REGINA v Rhys Martin Price CAMPLIN

Judgment

1 LEVINE J: I agree with the orders proposed and with the reasons given by Barr J therein.

2 SIMPSON J: I also agree.

3 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. The applicant was charged with two offences. The first was that between 3 October and 3 November 2002 he engaged in the ongoing supply of the prohibited drug amphetamine. The second was that on 4 November 2003 he supplied methylamphetamine. On the second count, Judge McGuire sentenced him to a fixed term of ten months and on the first, and taking into account four matters on a schedule, to imprisonment for an accumulated term of two years and eight months. His Honour fixed a non-parole period of two years on the first count, which produced an effective sentence of three years and six months and an effective non-parole period of two years and ten months.

4 The applicant was dealing in drugs from premises in a caravan park at Miranda. During the period limited by the first charge an undercover police operative attended at those premises on a number of occasions to buy drugs. He began by asking whether he could purchase $50 worth and the applicant replied that he did not supply anything worth less than $200. The first supply was of one gram of methylamphetamine for $200 on 4 October. The next supply was on 9 October, when the applicant sold the operative half a gram of the same drug for $100. A further one gram was sold on 15 October for $200.

5 During their conversations the applicant offered more than once to supply a crystallised form of methylamphetamine, commonly known as “ice”. The operative at first declined the offer but called at the premises again on 4 November. The applicant said that he had plenty of “ice” available. He had a number of small bags containing the substance, which he offered at $20 each. They negotiated the sale of three bags for $50. The total weight was half a gram.

6 The applicant was arrested soon afterwards and police searched his premises. There they found a further quantity of methylamphetamine, some cannabis, equipment for the administration of drugs and the sum of $50 which the operative had handed over earlier on the same day and was unlawfully obtained.

7 The applicant was 45 years old when sentenced. Over a period of more than 20 years he had been convicted for a substantial number of offences of various kinds, including offences of violence, dishonesty and the use of knives or cutting instruments. His record included the use, though not the supply, of a prohibited drug. He had never been in custody but had been made the subject of a suspended sentence. On 4 October 2001 he had been dealt with at the Local Court Sutherland on charges of possessing a prohibited weapon, goods in custody, possessing a prohibited drug and carrying a cutting weapon. He was fined and given the opportunity to enter bonds. The one imposed for carrying the cutting weapon was a three-year bond, a condition of which was that the applicant was to be supervised by the New South Wales Probation Service. That bond was in force at the time of the offences now under consideration.

8 At the time of the offences, the applicant had the custody of three of his seven children. Apart from the proceeds of drug sales, his only income appears to have been the supporting parent benefit. He was otherwise unemployed.

9 Three arguments are put forward as justifying this court’s interference, namely that the accumulation of the sentences led to an inappropriately long aggregate non-parole period, that the sentencing judge did not give appropriate weight to the totality of the applicant’s criminality and that the aggregate sentence is manifestly excessive.

The Accumulation of Sentences

10 The accumulation of sentences produced a non-parole period that exceeded 75 per cent of the aggregate head sentence. 75 per cent of three years six months is two years seven and a half months. The non-parole period exceeded that period by two and a half months and was 81 per cent of the effective head sentence. It was submitted that this court ought to infer that his Honour produced an effective non-parole period longer than that which he had intended. Having decided to impose a fixed term on the second count, his Honour considered whether circumstances existed which justified fixing a non-parole period on the first count which exceeded 75 per cent of the head sentence to be imposed on that count. His Honour concluded that there was none. Without mentioning accumulation, his Honour pronounced sentence. It was submitted that his Honour must have overlooked the fact that he was accumulating the two sentences and must have failed to consider accumulation when deciding what the length of the parole period should be.

11 Having dealt at length with the facts, the accused’s case and the need for deterrent sentences, his Honour said this:

Considering the question of rehabilitation and special circumstances, I have had regard to his failure to cooperate with the Probation and Parole Service and I have no confidence that he would so cooperate in any meaningful way in the future. I do note, to his credit, that he has been working whilst in custody.

I have considered the aggravating and mitigating and other factors, as detailed in s21A of the Crimes (Sentencing Procedure) Act . I have further had regard to the principles of totality.

12 The reference to the applicant’s failure to cooperate with the Probation and Parole Service was to a statement in the pre-sentence report which was before the court to the effect that the three year bond was terminated because of the applicant’s “uncooperative and unresponsive attitudes” towards supervision and attempts at intervention with respect to his offending behaviour. There was thus evidence on which his Honour was entitled to conclude that extension of the parole period was not justified because the applicant was unlikely to respond satisfactorily to the opportunities afforded by an early release on parole.

13 But did his Honour overlook the fact that he was accumulating the sentences? It is appropriate for a sentencing court when accumulating sentences to look at the aggregate head sentence and to consider the proposed parole period as a proportion of that sentence. So it has been said many times that the accumulation of sentences itself is capable of being an exceptional circumstance, that is, of justifying an extension of the parole period of the last-accumulated sentence at the expense of the non-parole period. That is not to say, however, that the sentencing court must, when accumulating sentences, adjust the proportions of the components of the last sentence. Neither is there any requirement for a judge to give reasons when fixing a parole period which is less than one quarter of any head sentence, accumulated or not.

14 I have come to the conclusion that his Honour did overlook the fact that he had accumulated the sentence that he was considering upon the ten month fixed term imposed for the second count. The portion of the judgment which I have extracted is the only reference to the adjustment of the non-parole and parole periods. It is very short and does not explain his Honour’s process of reasoning except impliedly. The parole period turns out to be exactly 25 per cent of the sentence accumulated for the first count. It bears no particular relationship to the aggregate head sentence. One can calculate the proportion, but there is no evidence on the facts nor on his Honour’s expressed reasons justifying a parole period which bears that proportion to the head sentence.

15 I think that the court ought to interfere with the sentence on the first count so as to produce a parole period not exceeding one quarter of the aggregate head sentence, which is what I think his Honour intended to achieve.

Totality and Manifest Excessiveness

16 It is convenient to deal with these arguments together. It was submitted that his Honour erred in wholly accumulating the sentences. To commit the offence of supplying prohibited drugs on an ongoing basis the offender must supply the relevant drug on three or more separate occasions during any period of thirty consecutive days. Since time began to run from the first supply, on 3 October, the supply of 4 November of methylamphetamine could not be counted. If they wanted to bring a charge arising out of that event the prosecuting authorities had to charge it as a separate instance of supplying. It was submitted first that the commission of the offence followed so closely upon the activities of the previous thirty days and was so similar in nature that a substantial degree of concurrence was called for. It was submitted that the amount supplied and the money involved were small. Reference was made to R v Smiroldo (2000) 112 A Crim R 47. It was submitted that, as his Honour found, the applicant had pleaded guilty at the earliest opportunity. He might therefore have expected to have the benefit of a discount of about 25 per cent for the utilitarian value of the pleas.

17 It was submitted by reference to statistics that the resulting sentences were very close to the top of the range. The statistics show that for sixty-three offenders dealt with for supplying amphetamines on an ongoing basis head sentences ranged from one year to five years and non-parole periods from six months to three years.

18 I do not think that the attack on the head sentence has been made good. It could not be said, and was not submitted, that some accumulation in the sentences was outside the range of his Honour’s discretion. Although the amounts supplied were small, the drug supplied on the last occasion was different and capable of being regarded as more dangerous than the other. Furthermore, a 10 month sentence for that offence, having regard to the applicant’s history, is of itself lenient.

19 Looking at the total resulting sentence, the non-parole period of which I would adjust for reasons which I have explained, I do not think that it has been shown to be so long as to have been outside the range of his Honour’s sentencing discretion. One must be wary about considering statistics which deal with all cases. It is impossible to tell from them whether any of the sentences made allowance for counts in which other supplies took place or were for offences committed while the offender was on a bond. I would not assume for these purposes that his Honour must have deducted “about 25 per cent” from the sentences to allow for the early pleas of guilty. The appropriate range is up to 25 per cent, at the discretion of the sentencing judge.

20 The sentencing judge is a most experienced judge, especially in drug cases, and I do not think that the effective sentence is outside the range of his Honour’s discretion.

21 I propose the following orders:

1. Grant leave to appeal and allow the appeal.
2. Quash the non-parole period on the first count and substitute a non-parole period of one year nine and one half months expiring on 18 June 2005.
3. Declare that the applicant will be eligible for release on parole on 18 June 2005.

22 LEVINE J: The orders will be as proposed by Barr J.

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Last Modified: 03/02/2004