R v Dominique
[2009] VSCA 133
•11 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 549 of 2008
| THE QUEEN |
| v |
| FRANCOIS DOMINIQUE |
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JUDGES: | MAXWELL P and KELLAM JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2009 | |
DATE OF JUDGMENT: | 11 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 133 | |
JUDGMENT APPEALED FROM: | The Queen v Dominique (unreported, County Court of Victoria, Judge Chettle, 14 February 2008). | |
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CRIMINAL LAW – Sentencing – Trafficking in drugs of dependence – Relevance of quantity of drug trafficked – Parity – Manifest excess – Sentence of 12 months’ imprisonment for trafficking eight grams of cannabis manifestly excessive – Other trafficking sentences within range – Resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert SC with Mr B F Kissane | Mr C Hyland, Solicitor for the Office of Public Prosecutions |
| For the Appellant | Mr M Croucher | Brugman Mellas |
MAXWELL P:
I agree that the appeal should be allowed to the limited extent identified by Kellam JA, and the appellant be resentenced as his Honour proposes. Subject to what follows, I would do so for the reasons which his Honour gives.
In relation to count 1, counsel for the appellant drew attention to the decision of this Court in R v Koumis.[1]One of the applications there dealt with (that of Barry Jones) concerned a sentence of five years, imposed following a plea of guilty to one count of trafficking in heroin.[2] Mr Jones had trafficked in approximately 320 grams of heroin. Like the appellant, he had been engaged in trafficking to feed his own drug addiction. The Court of Appeal reduced his sentence to four and a half years’ imprisonment.
[1](2008) 18 VR 434; [2008] VSCA 84.
[2]See The Queem v Koumis [2008] VSCA 84 [23].
Counsel for the present appellant pointed out that the 320 grams of heroin trafficked by Mr Jones represented 64 per cent of a commercial quantity of heroin. (The commercial quantity is 500 grams where the heroin is mixed with another substance). In the present case, the appellant was sentenced on the basis that he had purchased 123 grams of amphetamine, of which 41 grams had been on-sold. He had used the remaining 82 grams himself. The commercial quantity of amphetamine (when it is mixed with another substance) was 1.25 kg. That being so, what the appellant received constituted less than 10 per cent of a commercial quantity, and what he on-sold represented a little over three per cent of a commercial quantity.
Counsel for the appellant argued that the sentence of three years and six months imposed for trafficking amphetamine – when only three per cent of a commercial quantity was sold – could not be reconciled with the sentence of four years and six months imposed by this Court on Mr Jones for selling 64 per cent of a commercial quantity of heroin. Counsel noted that the scheme of penalties for drug trafficking is quantity-based, as this Court pointed out in R v Pidoto & O’Dea,[3] and argued that the appellant’s sentence on this count should therefore have been much less – that is, lower by a much greater degree – than the sentence imposed on Jones.
[3](2006) 14 VR 269.
A similar argument was advanced – and rejected – in The Queen v McCulloch.[4] There, the applicant had been sentenced to nine years’ imprisonment on each of two counts of drug trafficking. The first count concerned just over the applicable commercial quantity for the relevant drug, while the second involved a relatively much more significant amount. The argument was that the sentence on the first count should have been materially less than the sentence imposed on the second count.
[4][2009] VSCA 34.
In rejecting the argument, the Court (Maxwell P, Vincent JA and Hargrave AJA) said:
As the contributors to the joint judgment in Wong v The Queen pointed out, the weight of the trafficked material is only one of the matters to which regard must be had in the determination of an appropriate sentence.[5] Whilst, of course, the extent to which the trafficking exceeded the designated amount may be a significant factor in the determination of the appropriate sentence in an individual case, it certainly does not follow that there is some mathematical relationship of the kind for which counsel contended here. The judge had to take into account a range of sentencing considerations, bearing upon the applicant’s criminality in engaging in these activities, factors militating in favour of mitigation of penalty and the totality principle. It is clear that he did so. Unless the sentence of nine years on count 1 was shown to be manifestly excessive – and in our view it has not been – the applicant can have no complaint when the same sentence is imposed on count 2.[6]
[5](2001) 207 CLR 584, 609.
[6]The Queen v McCulloch [2009] VSCA 34 [46] (citations included).
For like reasons, I would reject the argument in this case. Plainly enough, the amount trafficked is an important matter in the determination of a sentence for drug trafficking. But it can only ever be one of the relevant matters. Nothing said by the Court in R v Pidoto & O’Dea[7] suggested otherwise. The Court was there addressing a quite different question, namely, the irrelevance of an individual judge’s assessment
of the harmfulness of the particular drug being trafficked.
[7](2006) 14 VR 269.
The maximum penalty of 15 years’ imprisonment for trafficking in a drug of dependence (in an amount less than a commercial quantity) shows that – as has been said repeatedly – every act of drug trafficking is to be viewed seriously. Kellam JA noted that the present appellant was the ‘centre of the drug trafficking operation’. His culpability was therefore high. No comparable finding was made in relation to Mr Jones.
KELLAM JA:
On 7 February 2008 the appellant pleaded guilty in the County Court at Geelong to five counts of trafficking in a drug of dependence. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The appellant also pleaded guilty to six summary offences namely using a drug of dependence, dealing with property the proceeds of crime and two charges of possession of a prohibited weapon and two charges of possessing ammunition without a licence.
On 14 February 2008 the appellant was sentenced as follows: count 1 (trafficking in amphetamines) three years and six months’ imprisonment; count 2 (trafficking in ecstasy) 12 months’ imprisonment; count 3 (trafficking in cocaine) 18 months’ imprisonment; count 4 (trafficking in cannabis) 12 months’ imprisonment; count 5 (trafficking in heroin) 12 months’ imprisonment. In relation to the summary offences the appellant was sentenced as follows: use of a drug of dependence (amphetamine) one month’s imprisonment; dealing with property suspected of being the proceeds of crime, one month’s imprisonment; two charges of possession of a prohibited weapon, one month’s imprisonment on each charge and two charges of possession of ammunition without a licence, total fine of $600.
Three months of each of the sentences imposed on counts 2, 3, 4 and 5 were
ordered to be served cumulatively upon count 1 and upon each other, making a total effective sentence of four years and six months’ imprisonment. It was directed that the appellant serve a minimum of three years’ imprisonment before becoming eligible for parole. The appellant now appeals his sentence having been granted leave to appeal by a single judge of this Court on 1 August 2008.
The grounds of appeal are as follows:
Ground 1: Each individual sentence imposed is manifestly excessive. The minimum term before which the appellant is not eligible for parole is manifestly excessive.
Ground 2: The learned sentencing judge erred in that he failed to apply or sufficiently apply the principles in relation to parity of sentences as between the appellant and co-offender, Shane White.
Ground 3: The learned sentencing judge erred in imposing an excessive level of cumulation.
Ground 4: ‘Fresh evidence’ indicates that the Adult Parole Board acted to revoke the parole of the appellant post the imposition of sentence, which revocation requires the appellant to serve an additional term of imprisonment (five months 30 days).
The effect of the above is that the principle of totality is offended and a miscarriage of justice has resulted.
Before turning to consider the grounds of appeal it is necessary to describe briefly the relevant factual background to the offending by the appellant and to say something of his personal circumstances.
The factual circumstances of the offending
On 24 July 2006 police were granted a warrant to intercept and monitor three mobile telephones being used by the appellant. Between that date and 9 August 2006 police monitored a total of 10,130 telephone calls to a complex network of drug suppliers from Melbourne, Werribee, Melton, Warrnambool and Geelong. As a result of monitoring the telephone intercepts, police identified the appellant as receiving large amounts of drugs from three main suppliers which he then sold to his own customers, being other local drug dealers in the Geelong area, or else used them himself. He received payment by accepting stolen property and cash for drugs. As a result of monitoring the telephone intercepts, police also discovered that the appellant’s de facto wife, Tammy Leigh Humphreys, discussed drug transactions with suppliers and clients in relation to trafficking cannabis.
On 9 August 2006 at approximately 12 pm police intercepted a vehicle being driven by the appellant in North Geelong. The appellant and a passenger were arrested and searched. The appellant was found to be in possession of $3,060 in $1,000 lots. A search warrant was then issued and the appellant was conveyed to premises in Church Street North Geelong where drug related items including white powder, anabolic steroids, multiple plastic deal bags, new syringes and some ammunition were located. The appellant was interviewed and made a ‘No comment’ interview in relation to the drug matters. A search warrant was executed at Humphrey’s address in Corio where cannabis, furnishings, electrical goods, ammunition and weapons were found. Police were able to identify many of the items seized at her premises as being property received by the appellant during the period of the telephone intercepts.
The appellant’s personal circumstances
The appellant was born in France on 22 November 1967 and accordingly was 39 years of age at the time of his arrest. He came to Australia in 1990. The appellant informed psychologist Mr Ian Joblin that he lived in Newcastle, New South Wales, until 1995 when he moved to Geelong. At that time he was on parole after serving three months of a 12 month sentence imposed for dishonesty offences.
Since coming to live in Geelong the appellant has amassed a considerable criminal record. He was convicted at the Magistrate’s Court at Geelong in May 1996 of 16 charges of obtaining a financial advantage by deception, three charges of attempting to obtain a financial advantage by deception, making a false document with intent, opening an account in a false name, possession of cannabis-L, using cannabis-L, and making a false and misleading statement on a passport application. He was sentenced to 12 months’ imprisonment with three months being suspended for a period of two years. However, the suspended sentence was breached in November 1996.
In November 1996 the appellant was convicted at the Magistrate’s Court at Geelong of three charges of obtaining property by deception and two charges of attempting to obtain property by deception. He was sentenced to a term of imprisonment of two months.
In August 1998 the appellant was convicted at the Magistrate’s Court at Geelong on 14 charges of obtaining property by deception, two charges of obtaining a financial advantage by deception, theft, fraudulently altering identification, attempting to obtain a financial advantage by deception and fraudulently altering or using vehicle licence plates. He was sentenced to a total effective sentence of 18 months’ imprisonment with a minimum non-parole period of 12 months but such sentence was varied upon appeal in November 1998 and the appellant was placed upon an intensive corrections order for a period of one month. However, the appellant breached the intensive corrections order and in October 1999 was sentenced to a term of imprisonment for a period of 251 days.
In March 1999 the appellant was convicted at the Magistrate’s Court at Geelong on two charges of obtaining property by deception, attempting to obtain property by deception, obtaining a financial advantage by deception, possession of a drug of dependence (hallucinogen), going equipped to steal, theft and unlicensed driving and was sentenced to six months’ imprisonment.
In August 1999 the appellant was convicted at the Magistrate’s Court at Geelong of four charges of obtaining property by deception and was sentenced to a term of imprisonment of four months, but that sentence was varied upon appeal to a term of imprisonment of 14 days.
In September 2000 the appellant was convicted at the Magistrate’s Court at Geelong of two charges of handling stolen goods, going equipped to steal, six charges of obtaining property by deception and obtaining a financial advantage by deception. He was sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of eight months to be served before being eligible for parole.
In June 2001 the appellant was convicted at the Magistrate’s Court at Geelong of 17 charges of making a false document with intent, three charges of using a copy of a false document with intent, 19 charges of obtaining property by deception, eight charges of obtaining a financial advantage by deception, and ten charges of using a false document with intent. He was sentenced to a total effective sentence of 12 months’ imprisonment.
In October 2002 the appellant was convicted at the Magistrate’s Court at Geelong on two charges of handling stolen goods and seven charges of obtaining a financial advantage by deception and was sentenced to a total effective sentence of 112 days’ imprisonment.
In October 2002 the appellant was convicted on two charges of obtaining property by deception and two charges of attempting to obtain property by deception and stating a false name and was sentenced to a term of imprisonment of one month.
In August 2003 the appellant was convicted at the Magistrate’s Court at Geelong on one charge of theft, one charge of obtaining a financial advantage of deception, one charge of possession of a drug of dependence (amphetamines), and one charge each of use of cannabis and use of amphetamines. He was sentenced to a term of imprisonment of 120 days.
In January 2005 the appellant was convicted at the Magistrate’s Court at Geelong on two charges of handling stolen goods, two charges of theft, nine charges of obtaining property by deception, two charges of making a false document with intent, 11 charges of obtaining a financial advantage by deception, one charge of dealing with property suspected of being proceeds of crime, one charge of failing to answer bail and one charge of possessing a controlled weapon without excuse. He was sentenced to a term of two years’ imprisonment with a minimum non-parole period of 18 months. In February 2006 the appellant was released on parole as a result of these latter matters. He was still on parole at the time of the commission of the offences with which this Court is concerned.
However, as the sentencing judge observed correctly, the 176 prior convictions of the appellant, arising from 11 court appearances during the ten years the appellant has resided in Victoria, do not include any convictions for drug trafficking. Nevertheless, the appellant has clearly had an involvement with drugs throughout that period, having been convicted of possession and use of cannabis in May 1996; possession of a drug of dependence in March 1999; and possession of amphetamines, using cannabis and using amphetamines in August 2003. Furthermore, the appellant’s criminal record is such that one can have little confidence in his prospects of rehabilitation. It demonstrates that issues of specific deterrence and protection of the public are relevant indeed. Furthermore it is of relevance that the offences in question took place whilst the appellant was on parole.
His Honour accepted that the appellant became involved in cannabis and amphetamine abuse whilst living in Newcastle and used cannabis, amphetamine and heroin after he moved to Geelong in 1995. He noted that the appellant ‘apparently had a significant drug habit’ at the time that he was sentenced to two years’ imprisonment in February 2006. That said, there was no evidence before his Honour that the appellant was addicted to drugs. Indeed, if anything, the evidence was to the contrary, the appellant stating to Mr Joblin that alcohol and drugs ‘had not been an issue for him’. His Honour accepted that the appellant’s pleas of guilt were made at an early time and he noted that no committal was conducted, a resolution as to the plea having been reached at committal level.
As he was entitled to do on the material before him, his Honour concluded that the appellant’s prospects for rehabilitation were ‘guarded’. In particular and apart from the plea of guilty, there was no evidence of remorse before him. He accepted the submission made on behalf of the appellant that the ‘primary drug trafficking business was that of trafficking amphetamine and the counts of trafficking ecstasy, cocaine, cannabis and heroin can be seen very much as incidental acts in the course of [the appellant’s] primary business’. For that reason he accepted that there should be ‘substantial but not total concurrency with respect to those counts’.
Ground 1
I turn to ground 1. Counsel for the appellant argues that each individual sentence is manifestly excessive. The counts of trafficking to which he pleaded guilty were of the ‘Giretti’[8] variety, involving many separate transactions during the period between 24 July 2006 and 9 August 2006. The statement of agreed facts stated as follows:
During the interception, police confirmed a total of 10,130 phone calls to a complex network of drug suppliers from Melbourne, Werribee, Melton, Warrnambool and Geelong. As a result of monitoring the telephone intercept, police identified Dominique [sic] received large amounts of drugs from three main suppliers which he then sold to his own customers, other local drug dealers in the Geelong area or used himself.
[8]R v Giretti (1986) 24 A Crim R 112.
The evidence as to count 1, which could be derived from the transcript material, was that the appellant had purchased 123 grams of amphetamine for the sum of $13,280 and that he had sold 40.8 grams for the sum of $5,050. The telephone intercept summary, attached to the statement of agreed facts which was placed before his Honour, establishes 41 separate sales or purchases of amphetamines. It is submitted on behalf of the appellant that in those circumstances a sentence of three years and six months’ imprisonment is manifestly excessive.
In all the circumstances, and particularly taking into account the scale of the offence and the fact that the plea of guilty was to a charge of trafficking on a Giretti basis, no serious complaint can be made that the sentence imposed on count 1 is manifestly excessive.
It should be observed that the Sentencing Statistics released by the Sentencing Advisory Council reveal that the average sentence imposed on persons sentenced for drug trafficking in a non-commercial quantity ranged from three years in 2003-04 to two years and eight months in 2006-07.
As to count 2, trafficking in ecstasy, the evidence as agreed between the parties was that the appellant engaged in the trafficking of ecstasy by purchasing 50 tablets for the sum of $1,000. He was sentenced to 12 months’ imprisonment in respect thereof. In my view, taking into account the antecedents of the appellant, his poor prospects of rehabilitation, the fact that the offence was committed whilst he was on parole and the issues of specific deterrence and protection of the public, the sentence imposed cannot be said to be manifestly excessive.
Likewise the sentence imposed on count 3 which relates to the purchase of 28 grams of cocaine for $7,500 and the sale of 1.2 grams for $440 in my opinion does not appear to be manifestly excessive in all the circumstances. The summary of telephone transcripts annexed to the statement of agreed facts establishes the purchase or sale of cocaine on four occasions during the relevant period. Taking all the relevant circumstances into account, a sentence of 18 months’ imprisonment is within the range of sentences to be imposed.
Count 4 involved the purchase of eight grams of cannabis for the sum of $80 and the sale of 8 grams of cannabis for $120. It would appear that the transcripts established two transactions, one being the sale and the other being the purchase.
I consider it reasonable to say that the sentence imposed on this count is manifestly excessive and that the cumulation of three months is likewise manifestly excessive.
As to count 5, the count of trafficking in heroin for which the appellant was sentenced to 12 months’ imprisonment, the agreed facts relate to one sale on 25 July 2006 of 0.2 grams of heroin. Taking into account all of the relevant circumstances, I do not consider that the sentence of 12 months’ imprisonment can be said to be out of the range of permissible sentences.
Ground 2
Before returning to the consideration of the overall sentence, it is appropriate to consider the other grounds upon which the appellant relies. Ground 2 relates to the issue of parity. As a result of the police operation it was established that one person from whom the appellant purchased drugs was Shane White. White pleaded guilty to three counts of trafficking in a drug of dependence, one count each in respect of methylamphetamine, ecstasy and cocaine. These drugs were said to have been trafficked for a total sum of approximately $7,350. White supplied these drugs to the appellant and was sentenced to 15 months’ imprisonment on each count.
Counsel for the appellant submits that the quantity and value of the drugs trafficked by White was ‘broadly similar’ to that trafficked by the appellant. He submits that the period of trafficking was the same; White had nine previous court appearances for a number of different offences; and his trafficking offences were committed whilst he was on bail for dishonesty offences. He argues that there is no reasonable explanation for the disparity in the sentences imposed on White for trafficking in methylamphetamine, ecstasy and cocaine.
In my view, the sentencing judge was entitled to differentiate the sentences in the way he did. His Honour specifically addressed the issue of parity and said that there was a ‘vast difference’ between the appellant’s position and White’s. That conclusion was well open to her Honour.
White was 26 years of age at the time of his offending; the appellant then being 39 years of age. The quantity of drugs trafficked by White was considerably less than that trafficked by the appellant. Whilst it is true that White sold drugs to the appellant he was not considerably higher in the hierarchy of the supply chain. The judge who sentenced White said that White’s trafficking placed him ‘at a level above street trafficking in amounts for single or intermediate use, but (did) not reflect that (he) was at a high level in the supply chain’. In the present case, the sentencing judge found that the appellant was ‘the centre of the drug trafficking operation’. There was no challenge to that finding on appeal, and it was conceded by counsel for the appellant – quite properly – that this was a significant distinction between him and White.
There was evidence before the sentencing judge that White was stabbed at the age of 18 years and that thereafter he developed poly-drug use. She had a report before her from psychologist Mr Joblin, the contents of which she accepted. Mr Joblin stated that White recognized the nature of his offending and the need to resolve to change. White had pleaded guilty at the earliest opportunity. The sentencing judge observed that White had family support. Of particular importance in the case of White was the fact has he had been in prison for nearly one year prior to sentence, having failed to answer bail in relation to other dishonesty offences. The sentencing judge took this into account specifically in his favour on a R v Renzella[9] basis.
[9][1999] VSCA 85.
Whilst White did have prior convictions, having attended court on nine previous occasions, many of those convictions were for motor car offences. His prior convictions were of considerably lower criminality than those of the appellant. As already noted, the appellant had on a number of occasions been sentenced to terms of imprisonment. The fact that his prior convictions were for dishonesty rather than for drug trafficking makes no real difference to the parity analysis, in my view. The appellant had a much more significant criminal record than White, and his prospects for rehabilitation (expressed by the sentencing judge as being ‘guarded’’) on any view were considerably less than those of White. In addition the Renzella factor was of real relevance in the case of White.
As stated by Maxwell P in R v Wolfe:[10]
[T]he question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant’s grievance about the sentencing relativity cannot be said to be justifiable.
[10][2008] VSCA 284, [9].
Taking all of the above matters into account, in my view it cannot be said that the disparity in sentencing is so great as to call for the intervention of this Court.
Ground 3
Ground 3 is that an excessive amount of cumulation was directed by the trial judge. I have stated already that in my opinion the sentence imposed upon Count 4 is manifestly excessive, as is the cumulation of 3 months imprisonment in respect thereof. However, in relation to the count of trafficking in ecstasy and in particular in relation to the count of trafficking in cocaine, no sensible complaint can be made that the degree of cumulation was other than modest.
Ground 4
There is evidence before the court that, on 14 May 2008, the Adult Parole Board cancelled the parole of the appellant in consequence of his conviction and sentence in relation to the offences the subject of this appeal. The appellant having been sentenced some months earlier, on 14 February 2008, the fact that the Parole Board did so is relied upon by him as new evidence which calls for his resentencing by this Court. The Crown conceded that this is so.
The proper approach to this issue was recently considered in R v Mangelen[11] where Redlich JA said as follows.
[11][2009] VSCA 63.
In R v Alashkar and Tayar this Court held that evidence of the cancellation of the parole subsequent to the sentencing of the appellant was admissible in this Court on the appeal against sentence by way of fresh evidence, so as to explain the true significance of the appellant’s breach of parole. The court recognised that upon receiving the evidence of the revocation of the appellant’s parole and the additional period of custody which the appellant must serve, the interests of justice required that the principle of totality should be applied to the entirety of the sentence which the appellant might have to serve. But in Alashkar the Court recognised the importance of the context in which the principle is to be applied. The Court said:
“[40 ] The consideration of that principle must take into account the obvious intention of s.16(3B)of the Sentencing Act that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed. In our view, taking that matter into account, together with all other relevant circumstances including the length of that sentence, the sentence imposed cannot be said to be an unjust or an inappropriate measure of the total criminality involved. The appeal should be dismissed.”
While the respondent concedes that the fresh evidence constituted by the cancellation of parole should be admitted and the principle of totality applied, an evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence. It must look at thetotality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. The Court must then consider whether the sentence imposed for the subsequent offending and which breached the parole, has produced an overall result out of proportion to the criminality represented by the two sets of offences. The Court may intervene if the total sentence is an “unjust or inappropriate measure of the total criminality involved.” In such a case the new sentence which the appellant has been required to serve might be moderated so that the total of the sentences to be served does not offend the totality principle.
Maxwell P stated in R v Cochrane that the fresh evidence re-opens the sentencing discretion, “not because the judge made an error but because of the necessity of reviewing the sentence in the light of the fresh evidence.” The appellant referred to authorities that have said that where parole is cancelled, the principle of totality must “bulk large” in the determination of the aggregate term of imprisonment imposed for the later offences. Those cases are not authority for the proposition that the principle will be given a more beneficent application in such circumstances. There is no reason why that should be so. Nor should it be assumed that this Court must intervene or impose a different sentence simply because the parole term has been enlivened and added to the sentence which is the subject of the appeal. Such an approach wrongly assumes that the sentence that has been imposed cannot be appropriate once the offender is required to serve further time in custody. A court may conclude that the sentence remains the correct sentence or is within the range of sentences that are reasonably open where the offender is required to serve a parole sentence. That was the view reached by this Court in decisions such as R v Mourad, R v Cochrane and R v Scholes. Indeed, it may transpire that the circumstances in which this Court will feel compelled to interfere may prove to be uncommon.
Where parole has been granted and subsequently cancelled, the offender will by definition have completed the non-parole period of that sentence. If upon sentencing for the offence which caused the cancellation of the parole, the parole sentence is cumulated on the new sentence - a result mandated by the Sentencing Act 1991 unless there are exceptional circumstances - the offender will be required at least to serve the non-parole period of that sentence. If the non-parole period of that sentence is calculated only by reference to the head sentence of the subsequent offence, and not by looking at the total period the offender may be likely to spend in custody, the practical effect will often be a longer than usual parole period. This consequence may be the intended effect of the legislative policy behind s 16(3B) of the Sentencing Act 1991.
Section 16(3B) provides that where an offender commits an offence whilst released into the community on parole, that sentence should be cumulative upon any other sentence imposed unless there are exceptional circumstances. The legislative policy which underlies s 16(3B) was explained in Alashkar where the Court observed:
“ … the obvious intention of s 16(3B) of the Sentencing Act [is] that where an offender commits a crime while released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed.”
Accordingly, once this Court has admitted the fresh evidence and the sentencing discretion is re-opened, s 16(3B) will apply. This Court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B). It was not suggested that any exceptional circumstances existed that would permit any part of the new sentence to be made concurrent with the parole sentence. Appellant’s counsel accepted that his client was not entitled to a more favourable outcome because the parole has been cancelled after sentence had been imposed than if he were sentenced at a time when he was already serving the parole sentence.
Totality is not a principle to be applied without regard to the components of the instinctive synthesis. The parole sentence may impact on the sentence to be imposed but the consideration oftotality does not override nor should it engulf other critical sentencing considerations. In this as in most cases the need to impose a punishment that reflected the objective gravity of the offence, general and specific deterrence, protection of the community and prospects for rehabilitation were a critical part of the sentencing synthesis. (Citations omitted.)
In the present case, the Adult Parole Board, having cancelled the parole of the appellant, assessed the amount of time ‘owed’ to the Board to be five months and 30 days. In consequence of that decision, the total amount of imprisonment which the appellant may be required to serve is four years, 11 months and 30 days. In my view, and taking into account the obvious intention of s 16(3B) of the Sentencing Act 1991 (Vic), the sentence imposed cannot be said to be ‘an unjust or inappropriate measure of the total criminality involved’.
However as stated above, in my view the sentence imposed upon count 4 is manifestly excessive. I would re-sentence the appellant as follows:
Count 1: Three years and six months’ imprisonment
Count 2: 12 months’ imprisonment
Count 3: 18 months’ imprisonment
Count 4: Three months’ imprisonment
Count 5: 12 months’ imprisonment
I would re-affirm the sentences imposed below in relation to the summary offences to which the appellant pleaded guilty.
In my view the appropriate order as to cumulation is as follows: Three months of each of the sentences imposed on counts 2, 3 and 5 and one month of the sentence imposed on count 4 should be served cumulatively upon each other and upon the sentence imposed on count 1. That results in a total effective sentence of four years and four months’ imprisonment. I would direct that the appellant serve a minimum of two years and 11 months’ imprisonment before becoming eligible for parole.
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