R v Donald; R v Pitt; R v Whitaker
[2016] SASCFC 117
•13 October 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DONALD; R v PITT; R v WHITAKER
[2016] SASCFC 117
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
13 October 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
Applications for permission to appeal against sentence - the three applicants were sentenced in the District Court of South Australia for a combined total of 57 serious drug offences, namely: trafficking in methylamphetamine and cannabis. Donald and Whitaker pleaded guilty to some offences prior to committal and some after committal thereby attracting differing penalty discounts - Pitt entered all his pleas at the same time.
Donald and Whitaker were entitled to a discount of up to 30 per cent for some offences and to a discount of up to 10 per cent for other offences. Pitt was entitled to a discount of up to 10 per cent for 10 offences in total.
All sentences consisted of notional sentences for each of the individual offences. Having arrived at the three sentences (after discounts) the sentencing Judge applied the principles of totality as the next step in the sentencing process before making the sentences partially concurrent.
The notional sentence imposed for Donald was 108 years and one month imprisonment (after discounts) and for Whitaker 102 years imprisonment (after discounts). The principles of concurrency and totality reduced both sentences to 15 years imprisonment. Both were given a non-parole period of nine years. The sentence imposed for Pitt was 60 years and 10 months imprisonment (after discounts). The principles of concurrency and totality reduced the sentence to 11 years and nine months imprisonment. He was given a non-parole period of six years.
Held per Lovell J (Nicholson and Parker JJ agreeing), allowing the applications and the appeals:
1. The sentencing process miscarried due to the approach adopted by the sentencing Judge.
2. Consideration of sentencing principles for multiple offending.
3. Each applicant to be resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10C, s 10(1); Controlled Substances Act 1984 (SA) s 44(2), referred to.
R v Dang [2015] SASCFC 154; R v Wakefield (2015) 121 SASR 569, applied.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Cameron v The Queen (2002) 209 CLR 39; Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; R v Bagnato (2011) 112 SASR 39; R v Belczacki (2012) 112 SASR 95; R v Dorning (1981) 27 SASR 481; R v Faehrmann [2014] SASCFC 25; R v Hoare (1989) 167 CLR 348; R v Kong (2013) 115 SASR 425; R v Major (1998) 70 SASR 488; R v Mangelsdorf (1995) 66 SASR 60; R v McNamara (2009) 105 SASR 38; R v Nylander [2003] SASC 191; R v Symonds [1999] SASC 217, discussed.
R v Copeland (No 2) (2010) 108 SASR 398; R v Smoker [2016] SASCFC 114; R v Young [2016] SASCFC 102, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "totality"
R v DONALD; R v PITT; R v WHITAKER
[2016] SASCFC 117Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON J: I agree that the appeal should be allowed for the reasons given by Lovell J and with the orders he proposes.
PARKER J: I would grant permission to each applicant to appeal and would uphold each of their appeals. I agree with the reasons of Lovell J and the orders he proposes.
LOVELL J:
Overview
It has often been said that sentencing criminal offenders is one of the more difficult tasks facing a judicial officer. Of recent times the task has become more demanding due to the interaction of s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) with general sentencing principles. Section 10C imposes a statutory regime regulating the discount to be applied to a sentence for a plea of guilty. This Court has recognised the utilitarian nature of s 10C and its role in sentencing. Amongst the issues raised on this appeal is the interrelationship between s 10C and s 18A of the Act.
The applicants Donald, Pitt and Whitaker were sentenced on 23 November 2015 in the District Court for numerous offences involving drug trafficking. The applicants conducted a comprehensive drug trafficking network which involved purchasing large quantities of cannabis and methylamphetamine and on-selling these drugs in smaller amounts to regular buyers in Port Augusta, Port Pirie, Whyalla and surrounding areas.
The difficult task facing the sentencing Judge in this matter was to sentence three offenders for a combined total of 57 serious drug offences and one count of drive dangerously to escape police pursuit. Further, pleas had been entered at two different stages of the proceedings thereby attracting different discounts. The Judge was required to have regard to the fact that the offending occurred in the course of an ongoing and successful enterprise which had been operating for longer than six months (longer than the time span of the charges).
Both Donald and Whitaker were sentenced to 15 years imprisonment with a non-parole period of nine years. Pitt was sentenced to 11 years and nine months imprisonment with a non-parole period of six years. All applicants submitted that the sentencing Judge imposed sentences that were manifestly excessive. Alternatively they submitted that errors in the Judge’s approach to the sentencing task were such that the sentencing process miscarried. This amounted to an error of law and that this Court should undertake the task of resentencing.
When imposing sentence the Judge stated:[1]
The Supreme Court also requires that in cases where there are a number of different offences, each of which attract different statutory discounts, that courts must specify separate individual notional starting points and discounts, even where the court ultimately applies a single sentence. Accordingly, the court is required to articulate the individual charges, notional starting points, discounts, sentences and issues as to concurrency and totality in some detail before arriving at a final result. Regrettably this will take some considerable time, however the court is legally required by authority to do so and therefore must do so.
[1] Appeal Book p 516.
The applicants submitted that his Honour was in error in adopting that approach and that he had misunderstood the decision of this Court in R v Wakefield[2] when making that statement.
[2] (2015) 121 SASR 569.
Before turning to the decision in R v Wakefield[3] it is necessary to trace the history of s 18A of the Act and its applicability to sentencing an accused for multiple offences.
[3] (2015) 121 SASR 569.
Law
The question of the appropriate approach when sentencing for multiple offences and the use of s 18A has been the subject of much discussion in the authorities.
A useful starting point is R v McNamara[4] where Vanstone J (with whom Kourakis J concurred), in following R v Major[5] stated:
The Court of Criminal Appeal has consistently held that, in applying s 18A of the Sentencing Act, the sentencing judge should, as a general rule, first determine what sentence each separate offence would attract. Then consideration should be given to whether the sentences would be concurrent or cumulative: R v Major (1998) 70 SASR 488 at 490 (Doyle CJ) and 497 (Olsson J); R v Place (2002) 81 SASR 395 at 432 (Doyle CJ, Prior, Lander and Martin JJ). Following that method has the advantage of exposing the sentencing process to scrutiny by an appellate court… Having said that, I do not suggest that a precise or arithmetical approach is called for. Ultimately, the sentence imposed under s 18A must reflect the total criminality involved: Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 85 per King CJ; R v Siozios (2004) 236 LSJS 88 per Perry J at [4], Doyle CJ agreeing.
[4] (2009) 105 SASR 38, 43 [27].
[5] (1998) 70 SASR 488.
In R v Copeland (No 2)[6] Kourakis J (as he then was), when discussing the interrelationship between s 18A and the doctrine of concurrency, stated:[7]
The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities. Section 18A of the CLSA does not abrogate sentencing principles governing the accumulation of sentences nor was it intended to render the sentencing process inscrutable.
…
… I wish to emphasise the importance of giving careful consideration to the extent, if any, to which individual sentences would have been made concurrent, if s 18A had not been utilised. From the perspective of sentencing principle, the failure to identify the individual sentences conceals the approach taken to accumulation or concurrency, the answer to which, obviously enough, has a great effect on the total sentence.
(Footnotes omitted)
[6] (2010) 108 SASR 398.
[7] R v Copeland (No 2) (2010) 108 SASR 398, 422-424 [93]; [98].
In R v Belczacki[8] the accused pleaded guilty to a number of offences that occurred between June and October 2010. The offending varied and included criminal trespass, aggravated serious criminal trespass, theft, breach of bail, driving while disqualified, carrying an offensive weapon and simple possession of methylamphetamine amongst other matters.
[8] (2012) 112 SASR 95.
David J discussed the differing approaches judges had taken to the use of s 18A. He said:[9]
It is to be noted from the judge’s sentencing remarks that he has not adopted what has been referred to as an “arithmetical approach” so described by Sulan J in R v Ravet. That approach involves setting notional sentences for each offence and discounting each sentence for the plea before adding them up and coming to a notional head sentence, then applying the principles of totality. The sentencing judge in this case, although indicating that he had gone through that exercise himself, said it would be complicated and unhelpful to set it out.
The other approach to sentencing is not to identify separate notional head sentences for each offence as long as a proper explanation is given by the sentencing judge. There appears to be a division in this Court as to what is the appropriate method. In R v Copeland (No 2), Gray J approved of the latter approach while White and Kourakis JJ in that case favoured the former. However, the decision of this Court in Ravet held clearly that, if a sentencing judge does not identify separate notional head sentences, that does not represent an error of law.
(Footnotes omitted)
[9] R v Belczacki (2012) 112 SASR 95, 102 [25]-[26].
The sentencing Judge in that case approached it on the latter view. David J said:[10]
In my view, the approach that the sentencing judge took in this case was the correct one. The number of offences was so great over a short period of time that to notionally identify different head sentences and accumulate them would be unrealistic and indeed meaningless. The trial judge looked at the whole course of offending very carefully, he looked at the seriousness of the matter bearing in mind that a number of the offences attracted maximum terms of life imprisonment and he carefully looked at those matters personal to the appellant. The fact that an offender is affected by drugs and has a drug problem can only be of limited weight in mitigating serious offending, especially where it is repeated and involves the invasion of people’s homes while they are occupied. In my view the learned sentencing judge has not erred in applying a head sentence of 10 years reduced to eight years for the pleas of guilty. I also indicate that the non-parole period of two years and six months, rather than indicating an error in the setting of the head sentence, demonstrates a merciful approach by the sentencing judge to reflect the personal circumstances of the appellant.
[10] R v Belczacki (2012) 112 SASR 95, 102 [27].
David J would have dismissed the appeal.
Peek J in allowing the appeal considered the authorities in some detail as he had done in R v Bagnato.[11] He considered on the facts of the case that the sentencing Judge had erred in not considering properly the question of concurrency. Error having been established he resentenced the appellant.
[11] (2011) 112 SASR 39.
Blue J agreed with Peek J but added the following comments:[12]
On this appeal, the question whether in the circumstances of this case a sentencing judge ought to have identified notional sentences for each offence prior to fixing a single sentence pursuant s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) does not arise. It does not arise because it was not argued and because the sentencing judge said that he did determine notional sentences for each offence prior to fixing a single sentence.
There appear to be differences (at least in emphasis) in previous decisions of this Court concerning whether and in what circumstances a sentencing judge ought first to determine notional sentences for each offence when proceeding pursuant to s 18A of the Act. Some of those decisions are referred to in the reasons for judgment of David J and Peek J. Given the circumstances of this case, I prefer to express no opinion on that question. Subject to that reservation, I agree with the reasons for judgment of Peek J.
[12] R v Belczacki (2012) 112 SASR 95, 116 [87]-[89].
In my view Blue J was correct to describe any perceived differences as a matter of emphasis.
However, it has been accepted that the approach identified in R v Major[13] is not a mandated one. As Doyle CJ stated in R v Symonds:[14]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major …
[13] (1998) 70 SASR 488.
[14] [1999] SASC 217 [21]-[22].
It is apparent that the former Chief Justice did not provide an exhaustive category of situations where it would not be necessary or appropriate to follow the approach in R v Major.[15]
[15] (1998) 70 SASR 488.
This approach was followed in R v Nylander[16] where Bleby J after discussing the approaches outlined in R v Major[17] and R v Symonds[18] stated:[19]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[16] [2003] SASC 191.
[17] (1998) 70 SASR 488.
[18] [1999] SASC 217.
[19] R v Nylander [2003] SASC 191 [81]-[85].
It can be seen that the Court has consistently adopted the position that in some cases the approach of attempting to fix a notional sentence for individual offences will lead to an “air of unreality” in the sentencing process. As to when such an “air of unreality” arises in any particular case is of course a matter of judgment. Much will depend on the facts and circumstances of each case and no doubt different judges will come to different conclusions as to when that stage is reached.
The enactment of s 10C added another layer of complexity to the task where differing discounts are to be applied. The question of how such an issue should be dealt with was discussed in R v Wakefield.[20]
[20] (2015) 121 SASR 569.
In R v Wakefield[21] the sentencing Judge had to sentence the appellant for only two offences namely, aggravated robbery and aggravated recklessly causing harm. The guilty pleas had been entered at different stages and there was an argument before the Judge as to whether a discount of up to 30 per cent applied to both pleas, or whether the maximum of 30 per cent applied to one offence and 10 per cent discount to the other.
[21] (2015) 121 SASR 569.
The Judge did not state the percentage discount to be applied to each offence. The Judge utilised s 18A of the Act and applied one penalty. The Judge allowed an overall reduction of 12.5 per cent for the pleas of guilty; no explanation was given as to how that figure was determined. It appears that the sentencing Judge attempted to apply some average percentage discount across both offences when applying s 18A. Unsurprisingly the Court of Appeal said he was in error in so doing.
Blue J, with whom the other members of the Court agreed, stated the principles as follows:[22]
When there are different maxima applicable or the prescribed criteria have a differential operation in respect of individual offences, such that the application of s 10C would result in different discounts for the individual offences, the sentencing court is required to apply the prescribed criteria by reference to the respective maximum discounts and arrive at individual discounts for those individual offences. There is no reason why the sentencing court cannot impose a single penalty utilising s 18A, but it must do so by proceeding in the manner prescribed by s 10C.
When a sentencing court utilises s 18A to impose a single penalty and application of s 10C requires differential discounts in respect of the individual offences, the sentencing court is obliged to explain how it has arrived at the single sentence imposed after application of the differential discounts. This, in turn, requires identification of the notional starting head sentences for the individual offences and the notional discounts applied.
When a sentencing court utilises s 18A to impose a single penalty and there is a factual or legal dispute whether the application of s 10C results in differential discounts, it is incumbent on the sentencing court to rule on the dispute and give reasons for its ruling.
When a sentencing court utilises s 18A to impose a single penalty and the parties accept or the court rules that the application of s 10C necessarily results in a common discount for all offences dealt with under s 18A, s 10C does not require the sentencing court to determine or identify separate starting points and discounts for the individual offences dealt with under s 18A. Whether the court should do so will depend upon other considerations which it is not necessary to examine for the purposes of this appeal.
[22] R v Wakefield (2015) 121 SASR 569, 580 [38]-[41].
It is pertinent to observe that in R v Wakefield[23] the Court was dealing with the use of s 10C and s 18A in the context of only two charges. The remarks of Blue J need to be seen in that context. It can be seen from the reasoning of Blue J that where a court wishes to apply s 18A and impose one sentence, and different discounts apply to the individual offences, a court must explain how it arrived at the single sentence imposed. This would require identification of the notional sentence for each offence.
[23] (2015) 121 SASR 569.
Where, however, a sentencing court utilises s 18A to impose a single penalty and does so where there is a common discount for all offences it does not necessarily, depending upon other circumstances, have to follow that procedure.
It must be remembered that the process of sentencing is ultimately a matter of discretion and judgment. It is a matter of “instinctive synthesis” and not simply a mathematical exercise.[24] The Act requires that the defendant is adequately punished[25] and that the sentencing Court has regard to, if it is alleged, the course of conduct.
[24] Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; Cameron v The Queen (2002) 209 CLR 339.
[25] Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(j).
Against that background the approach to sentencing a prisoner for multiple offending appears to be governed by the following principles:
1.It is always necessary to identify the applicable sentencing principles and standards for the particular offences charged.
2.In applying s 18A of the Act, the sentencing Judge should, as a general rule, first determine what sentence each separate offence would attract and then consider whether the sentences should be served concurrently or cumulatively. In considering the question of whether a sentence should be served concurrently or cumulatively the general criminal law sentencing principles apply. This approach has the benefit of transparency.
3.In some cases the matter may be so straightforward that the separate consideration of the individual sentences is unnecessary.
4.In some cases the approach in paragraph two may be unnecessary because the totality principle will so obviously operate that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. In such cases to accumulate the sentences will lead to an “air of unreality” in the sentencing process.
5.If a sentencing court wishes only to use s 18A once for multiple offences, and differing statutory discounts apply, the Court must explain how it has arrived at the single sentence imposed after application of the differential discounts. This requires identification of the notional starting head sentences for the individual offences and the notional discounts applied. If the offending can be grouped, such that a common discount applies across particular offences, and s 18A applied to the various groupings independently, then notional sentences will not be necessary.
6.As to when such an “air of unreality” arises in any particular case will depend on the facts and circumstances of each case.
7.Failure to adopt any particular approach will of itself not amount to an error of law.
8.The sentencing Judge should provide sufficient reasons for the approach adopted.
These principles appear to be consistent with the approach adopted by the Court in R v Dang.[26] In that case the appellant was sentenced for numerous offences involving trafficking in methylamphetamine and heroin. In total there were 11 counts, six of which had been committed for sentence from the Magistrates Court (an early plea) and five of which were committed for trial in the District Court. The appellant pleaded guilty to the District Court offences shortly before trial. Accordingly, by virtue of the operation of s 10C of the Act the appellant was entitled to a reduction in the sentence of up to 10 per cent for the District Court offences and up to 30 per cent for his earlier pleas for the Magistrates Court offences.
[26] [2015] SASCFC 154.
The Judge imposed a notional sentence of two years imprisonment for each of the offences and then applied the appropriate discount. He then accumulated the sentences before reducing the final sentence taking into account the totality principle.
The Court (Kourakis CJ, Sulan and Nicholson JJ) stated:[27]
In our view, the approach of the sentencing Judge was erroneous. The application of a notional sentence of two years’ imprisonment for each of the 11 District Court and Magistrates Court offences failed to give adequate consideration to the appropriate penalty for each offence and whether the sentences for each offence should be concurrent, partially concurrent or cumulative before arriving at a final head sentence. The starting point of two years for each count was manifestly inadequate.
In our view, the correct approach was to consider each group of offending, that being the District Court offences and the Magistrates Court offences, and impose one penalty for each group, having regard to the discount applicable to that group. Having determined the penalty for each group of offending pursuant to s 18A of the Sentencing Act, the next step was to determine what amount of each sentence should be served concurrently, taking into account that the offending was a course of conduct in trafficking over a six-month period.
Arriving at an appropriate final sentence for multiple offences comprising a single course of conduct by starting with each individual offence and then applying the principles of concurrency and totality is a difficult and cumbersome process. It is further complicated in this case by the fact that the discounts for pleas of guilty vary in respect of the District Court offences and the Magistrates Court offences. Further, the offending was part of a course of conduct and should be considered as such. Nonetheless it is necessary to commence by identifying the applicable sentencing principles and standards for offences of this kind before applying them to the facts and circumstances of this case.
[27] R v Dang [2015] SASCFC 154 [13]-[15].
Thus on appeal the Court used s 18A in relation to those offences attracting up to a 10 per cent reduction and s 18A in relation to those sentences attracting up to a 30 per cent reduction therefore avoiding the need to impose notional sentences. Having arrived at those two sentences the Court again used s 18A to arrive at a final sentence appropriate to reflect the criminal conduct.
In my view the approach adopted by the Court in R v Dang[28] is consistent with the principles outlined earlier.
[28] [2015] SASCFC 154.
Background to the offending
The applicants conducted a comprehensive drug trafficking network that involved purchasing large quantities of cannabis and methylamphetamine and on-selling these drugs in smaller amounts to regular buyers in Port Augusta, Port Pirie, Whyalla and surrounding areas. I will deal with the details of the allegations later in these reasons.
Whitaker pleaded guilty to 25 counts: 19 of trafficking in a controlled drug (cannabis 12 counts and methylamphetamine seven counts) and six of trafficking in a commercial quantity of a controlled drug (cannabis).
Donald pleaded guilty to 23 counts: 16 counts of trafficking in a controlled drug (methylamphetamine), four counts of trafficking in a commercial quantity of a controlled drug (cannabis), one count of trafficking in a commercial quantity of a controlled precursor and one count of possessing a controlled drug for supply (methylamphetamine). He also pleaded guilty to one count of driving dangerously to escape police pursuit.
Pitt pleaded guilty to 10 counts of trafficking in a controlled drug (methylamphetamine (nine) and cannabis (one)).
Donald and Whitaker pleaded guilty to some offences prior to committal and some after, thereby attracting differing discounts. Within each category of discount there were also differences in the type and amount of the drug trafficked. Different maximum penalties therefore applied. Pitt entered all his pleas at the same time. The Judge approached the sentencing task in an identical manner for all three applicants.
Approach of the sentencing Judge
The Judge appears to have considered himself bound by law to approach the matter by allocating a notional sentence to each offence and then applying the appropriate discount to that notional sentence. He then accumulated all of the individual sentences for each applicant. The Judge did not mention any cases that supported the principle he felt constrained to follow. He approached the task in this way even though Pitt’s guilty pleas all attracted the same discount.
In the case of Whitaker he arrived at the figure of 102 years imprisonment (after discounts), for Donald 108 years and one month imprisonment (after discounts) and for Pitt 60 years and 10 months imprisonment (after discounts). To those figures for each applicant he purported to apply the principles of totality. Finally he purported to make the notional sentences partially concurrent.
All applicants complained that the final head sentence was manifestly excessive. Further all applicants alleged that:
1.The Judge was in error in considering himself bound by law to follow the approach to sentencing he adopted.
2.The utility of employing s 18A was totally lost in that approach.
3.The approach adopted had the effect of rendering the statutory discount available to each applicant completely meaningless.
4.By arriving at the same notional starting point for each similar count the Judge failed to take into account for each offence matters personal to each applicant or other relevant s 10 matters.
5.The Judge had insufficient regard to matters personal to each applicant.
6.The manner in which the sentencing Judge applied concurrency and totality made the sentences and non-parole periods manifestly excessive.
For the reasons expressed earlier in this judgment I agree that the Judge erred in considering himself bound by law to follow the approach he did. His approach rendered meaningless the statutory discount to which each applicant was entitled. The utility of employing s 18A was also lost. Further it is not clear how he applied concurrency and totality.
Other errors have also occurred. By arriving at the same notional starting point for each similar count the Judge has erred in failing to take into account for each applicant matters personal to them or other relevant s 10 matters. I set out a table demonstrating in detail the approach adopted by the Judge.
WHITAKER Counts Drug involved Discount Notional SP Notional
sentence39 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 40 1.812kg cannabis
(commercial)10% 4 years 3 months 3 years 9 months 41 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 42 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 44 907g cannabis 10% 3 years 9 months 3 years 4 months 45-46 14g and 28g cannabis 10% 3 years 2 years 8 months 47 cannabis various amounts 10% 4 years 2 months 3 years 9 months 48 cannabis various amounts 10% 4 years 2 months 3 years 9 months 49 cannabis various amounts 10% 3 years 4 months 3 years 50 28g cannabis 10% 3 years 2 years 8 months 51 225g cannabis 10% 3 years 3 months 2 years 11 months 55 453g cannabis 10% 3 years 6 months 3 years 2 months 56 28g meth 10% 8 years 7 years 2 months 57 28g meth 10% 8 years 7 years 2 months 58 28g meth 10% 8 years 7 years 2 months 59 28g meth 10% 8 years 7 years 2 months 60 28g meth 10% 8 years 7 years 2 months 61 28g meth 10% 8 years 7 years 2 months 217 1.36kg cannabis
(commercial)30% 4 years 2 years 9 months 218 453g cannabis 30% 3 years 6 months 2 years 5 months 221 453g cannabis 30% 3 years 6 months 2 years 5 months 225 1.36kg cannabis
(commercial)30% 4 years 2 years 9 months 261 14g meth 30% 6 years 4 years 2 months 306 28g cannabis 30% 3 years 2 years 1 month
DONALD Counts Drug involved Discount Notional SP Notional
sentence1 14g meth 10% 6 years 5 years 5 months 2 1.584kg cannabis
(commercial)10% 4 years 2 months 3 years 9 months 3 28g meth 10% 8 years 7 years 2 months 4 28g meth 10% 8 years 7 years 2 months 5 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 6 28g meth 10% 8 years 7 years 2 months 7 28g meth 10% 8 years 7 years 2 months 8 28g meth 10% 8 years 7 years 2 months 9 28g meth 10% 8 years 7 years 2 months 10 14g meth 10% 6 years 5 years 5 months 11 14g meth 10% 6 years 5 years 5 months 12 28g meth 10% 8 years 7 years 2 months 13 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 14 1.36kg cannabis
(commercial)10% 4 years 3 years 7 months 15 28g meth 10% 8 years 7 years 2 months 16 7.5g meth 10% 4 years 6 months 4 years 17 370ml precursor
(commercial)30% 4 years 3 months 3 years 76 0.9g meth 30% 4 years 2 years 9 months 77 0.9g meth 30% 4 years 2 years 9 months 82 3.3g meth 30% 4 years 3 months 3 years 101 15.6g cannabis 30% 3 years 6 months 2 years 6 months 105 2.78g meth[29] 30% 18 months 12 months [29] This count pertained to a charge of possession for supply as opposed to trafficking.
PITT Counts Drug involved Discount Notional SP Notional
sentence29 14g meth 10% 6 years 5 years 4 months 30 14g meth 10% 6 years 5 years 4 months 32 14g meth 10% 6 years 5 years 4 months 37 14g meth 10% 6 years 5 years 4 months 33 28g meth 10% 8 years 7 years 2 months 34 28g meth 10% 8 years 7 years 2 months 35 28g meth 10% 8 years 7 years 2 months 36 28g meth 10% 8 years 7 years 2 months 38 28g meth 10% 8 years 7 years 2 months 31 907g cannabis 10% 3 years 9 months 3 years 4 months
As can be seen from the tables the Judge has imposed a sentence for each offence and then applied the appropriate discount to that offence to arrive at what he described as a notional sentence. But the notional sentence for each similar offence is identical. His Honour then aggregated the notional sentences.
By way of example, for every offence of trafficking in 28 grams of methylamphetamine the Judge has imposed a notional sentence of eight years imprisonment irrespective of whether it was the first or last offence charged and irrespective of the personal circumstances of each applicant. It is correct to observe as the Director of Public Prosecutions (“the Director”) submitted that the Judge differentiated the offences by the weight of drug trafficked. I understand why this may have been a convenient way to approach the matter, given the process embarked upon by the Judge. However it is contrary to what was said by this Court in R v Dang[30] and to basic sentencing principles; it simply highlights the difficulty the Judge faced in adopting the approach he did. Some of the individual “notional sentences” are manifestly excessive particularly in relation to the cannabis charges. Whilst they are only “notional sentences” they have led to an artificially high accumulated sentence.
[30] [2015] SASCFC 154.
The approach the Judge should have adopted was to apply s 18A to all the offending for which up to a 30 per cent discount was available and to also apply s 18A to that group of offending which attracted up to a 10 per cent discount for guilty pleas. Had he adopted that approach he would not have been required to specify the individual offences and apply the prescribed criteria to arrive at individual discounts for those individual offences. He should then have considered the question of concurrency of those sentences. Alternatively he could use s 18A again and impose one sentence. In such circumstances the principle of totality will have little or no work to do.[31]
[31] R v Smoker [2016] SASCFC 114
The sentencing task faced by the Judge was difficult. However in my view the approach adopted and the errors contained within the approach demonstrate that the sentencing exercise has miscarried to such an extent that it amounts to an error of law. This Court must embark on resentencing each applicant.
As the Court is to embark on a resentence of each of the applicants it is unnecessary to consider the other grounds of appeal including the issue of manifest excess.
Overview of offending
Throughout 2013 police conducted an operation in the Port Augusta area relating to the sale and supply of illicit drugs. This involved telephone intercepts, surveillance and undercover work. A number of arrests were made including the three applicants. Their involvement in the criminal enterprise was as follows.
Whitaker
Whitaker operated a cannabis trafficking enterprise from his residence in Port Augusta. He purchased large quantities of cannabis from his associates, including a person still awaiting trial. The cannabis was stored, repackaged and on-sold in smaller amounts to a large number of buyers who attended his premises or nearby his premises. Whitaker was also legitimately employed as a truck driver and would be away working for extended periods of time. In his absence his partner, Ms Hutchinson, her mother and her step-father, who all resided at the residence, continued to conduct the drug business. Whitaker also sold cannabis to and purchased cannabis from Donald. He also facilitated Donald’s purchases of cannabis and methylamphetamine from other associates. It was agreed that during the trafficking operation, Whitaker sold approximately 213.5 grams of methylamphetamine, and approximately 16 kilograms of cannabis. Not all of the transactions were the subject of a charge.
Clearly there was a significant element of commerciality.
Donald
Donald’s role in the drug trafficking operation, in broad terms, involved the purchasing and selling of methylamphetamine and cannabis. He conducted regular “drug runs” from Port Augusta to Adelaide to purchase these drugs from people, including his co-accused Pitt and other associates, some still facing trial. On one occasion he purchased and attempted to on-sell with another a commercial quantity of a controlled precursor to enable the manufacture of methylamphetamine. Donald also conducted “missions” from Port Augusta to surrounding areas usually remote locations at roadside rest stops or roadside service stations to meet his associates from which he would purchase large amounts of methylamphetamine. He would then on-sell the drugs obtained in smaller amounts to a large number of regular buyers in Port Augusta, Port Pirie, Whyalla and surrounding areas. In the course of his arrest, Donald drove dangerously in an attempt to escape a police pursuit.
It was agreed that during the drug trafficking operation he purchased a total of approximately 19.7 kilograms of cannabis and a total of approximately 658 grams of methylamphetamine. He was charged with and sentenced for trafficking in approximately 5.5 kilograms of cannabis and 281.37 grams of methylamphetamine.
Clearly there was a significant element of commerciality.
Pitt
Pitt was a “primary seller” of methylamphetamine to Donald. At times he would also sell him cannabis. Pitt would telephone Donald to organise face-to-face transactions at his residence or at a nearby place. Occasionally Pitt would be unable to conduct the transaction himself and would send an associate on his behalf. In total Pitt was charged with selling approximately 196 grams of methylamphetamine and 907 grams of cannabis to Donald. However the evidence proved that over the course of the six-month undercover operation Pitt was involved in selling approximately 335.25 grams of methylamphetamine of which about 300 grams was to Donald.
Summary
In total for the three applicants, the sentencing Judge had 57 counts[32] before him which were representative of a course of conduct that occurred over a six month period. It was accepted that, although the charges laid related to the period from early June 2013 through to December 2013, the joint enterprise had in fact started earlier than that. Whitaker pleaded guilty to 19 counts of trafficking in a controlled drug; namely cannabis and methylamphetamine and six counts of trafficking in a commercial quantity of a controlled drug; namely cannabis. He was sentenced to a term of imprisonment of 15 years with a non-parole period of nine years. Donald was sentenced for a total of 23 counts of offending, which involved; 16 counts of trafficking in a controlled drug; namely methylamphetamine, four counts of trafficking in a commercial quantity of a controlled drug; namely cannabis and one count of trafficking in a commercial quantity of a controlled precursor, one count of possessing a controlled drug for supply and one count of driving dangerously to escape police pursuit. He was sentenced to 15 years imprisonment with a non-parole period of nine years. Pitt was sentenced for 10 counts of trafficking in a controlled drug; namely methylamphetamine and cannabis. He was sentenced to 11 years and nine months with a non-parole period of six years.
Personal circumstances
[32] Not including the one count of drive dangerously to escape police pursuit.
Background of Whitaker
Whitaker was born in Port Augusta. He had a relatively normal childhood although his mother had cancer while he was growing up. He has two sisters; tragically one is going blind. At school he was placed in special English classes and he also participated in a learning assistance programme. He was bullied at school for “being fat”.
Whitaker attended secondary school to Year 10 before completing a prevocational course to obtain Year 11 equivalency. After leaving school he completed a prevocational course in metal, mechanics and automotive and lathe work. At 16 he left home to undertake full-time employment. He completed a number of apprenticeships before becoming a truck driver. When arrested he had been driving trucks for about seven years. He would often drive from Whyalla to Adelaide.
Whitaker is currently 31 years old and has a daughter aged seven years. Prior to his incarceration he had regular contact with his daughter. The applicant was engaged to be married. His fiancée was a single mother when they met and going through custody issues with her ex-partner. She suffered several miscarriages throughout the relationship with Whitaker. He became unhappy in the relationship but attempts to end it were often met with threats of having no contact with his step-daughter, who he had raised as his own. The relationship lasted seven years. The applicant began using methylamphetamine at 20 following the death of his best friend who died in a motorbike accident. Whitaker “went off the rails” for about 12 months.
Whitaker has a history of poker-machine gambling. He would use his entire wage at a time to gamble on the pokies. His estimated weekly gambling cost was between $1000 and $2000. During the period of offending he had accrued significant financial debts. He has two home loan mortgages and debts in relation to his motorbike and house solar panels. Whitaker started to sell drugs in an attempt to repay his financial obligations and cover his gambling habit. Dr Holmes, a psychologist, opined that Whitaker suffered from a gambling disorder and adjustment disorder with mixed disturbance of emotions and conduct.
Whitaker has no relevant prior convictions.
Whitaker has been taking anti-depression medication since his incarceration. He is a compliant prisoner, currently works in the prison spray shop and has assisted other prisoners to learn the skills of the trade.
Background of Donald
Donald was born in Swan Reach. He had a troubled childhood as his father was a “violent alcoholic”. His father was verbally and physically abusive towards him and his mother and he would “run away so his father could not assault him.” Due to living in a small country town Donald would often socialise with individuals who were significantly older than him. He wanted to emulate their behaviour and they were responsible for introducing him to using cannabis and petty crime.
The family moved to Christies Beach when Donald was 12 years old. At school he was bullied about being a “country boy living in the city”. He also bullied students he did not like and was suspended twice for fighting. When aged 15 years Donald was a passenger in a motor vehicle that was involved in a collision and the 21-year-old driver was instantly killed. Donald did not suffer any significant physical injuries but was psychologically traumatised from the accident.
Donald and his family later relocated to Alice Springs to escape his negative peer group. Whilst still a youth Donald went trial bike riding with two friends who accidentally drove off a cliff. One died and the other suffered a severe traumatic brain injury leaving him in a permanent neuro-vegetative state. This accident also traumatised him.
The family moved to Port Augusta. Donald left school at 15 to undertake a four-year Butcher apprenticeship, which he completed. He also started using cannabis at this time. By the age of 19 he was a daily user of cannabis. He has also abused other substances, including ecstasy and cocaine. He has never participated in drug rehabilitation. He has a limited prior adult offending history.
Donald is currently 31 years old. He has one younger brother who has a drug problem. He has two sisters with whom he has a good relationship. His parents divorced after being married for 20 years. Currently his relationship with his father is the closest that it has ever been and he enjoys a very close relationship with his mother. He has one son aged six years.
Donald worked in the supermarket and butchery industry for 10 years before his arrest. He has no major criminal history. At 27 he married but divorced two years later in 2011. His usage of cannabis strained the relationship. Following the divorce the applicant became severely depressed and his use of cannabis escalated. He started using “ice” and instantly became addicted. At the time of his arrest he was using a gram a day. Donald was also involved with a woman who was part of the drug-using and drug-offending subculture.
Mr Balfour, a clinical psychologist, was of the opinion that Donald was suffering from a dysthymic mood disorder which had been exacerbated by an “ice” addiction. He opined that the prognosis to cease offending was fair to good if the applicant sought treatment. Since the applicant’s incarceration he has worked in the prison spray shop five days a week. He is a well-behaved prisoner. He has an “exemplary history in the prison system”.
Background of Pitt
Pitt was born in Adelaide. As a child growing up his father used methamphetamine and cannabis. His father was “angry a lot of the time and had a temper.” Pitt’s parents separated when he was in Year 6 due to his father’s use of drugs. During the marriage break-up his parents would consistently argue and he observed his father hit his mother. Pitt left home for a short period of time to live with a friend’s family, but returned due to being home-sick. His mother stayed in bed “for two years, depressed” as a result of the marriage breakdown. His mother eventually found a new partner, but Pitt did not get along with him. He moved in with his sister to get away. Pitt was in effect raised by his sister.
Pitt completed his schooling until Year 10. He started using cannabis and ecstasy in high school. During high school he also socialised with his cousins who used cannabis and committed low-level street offences. He was suspended once for fighting at school. Following high school Pitt attended TAFE and completed an apprenticeship as a metal fabricator. He has also attained qualifications as a fitness instructor.
At 23 Pitt formed a relationship with a girl who was abusive, manipulative and addicted to drugs. He started using methamphetamine to impress her and quickly became addicted. The relationship lasted about five months. Pitt also used cocaine and the drug “fantasy”.
Pitt had a severe methylamphetamine addiction and became involved in the drug trade in part at least to fund his drug habit. He has no other significant prior offending history. In 2013 some people broke into his premises looking for drugs. He has not used drugs since his arrest in 2013.
Mr Williams, a clinical psychologist, diagnosed the applicant with suffering from a severe stimulant use disorder and antisocial personality disorder. The reports from the Department of Correctional Services have been positive. The applicant is a compliant prisoner.
Prosecution submissions
The Director submitted that the offending of each applicant was very serious. He submitted that the offending for which each applicant fell to be sentenced was representative of a much broader foray into criminality. Whilst accepting that the applicants were to be sentenced only for the charges to which they pleaded guilty, the pleas had to be seen in this wider context. Given the number of offences to which they pleaded guilty and the time over which the offending occurred the applicants, it was submitted, could not expect the leniency that would otherwise be afforded to isolated offending.
The Director submitted that the addictions suffered by the applicants were of little weight and that commercial gain was the “central motivating” factor for all applicants. Further he submitted both general and personal deterrence were important factors to be considered.
Resentencing
It is necessary to identify the applicable sentencing principles and standards for offences of this kind before applying them to the facts and circumstances of this case. Clearly, given the number of charges, accumulating sentences would introduce an “air of unreality” to the sentencing process.
The Court must make an assessment of the seriousness of the offending along with matters of mitigation. Then the Court should consider the questions of concurrency or partial concurrency so as to impose a sentence which is fair and appropriate. Questions of concurrency or partial concurrency involve the Court considering the relationship between the offences and penalties so as to structure a sentence which is proportionate in all of the circumstances.
In R v Dorning[33] a case involving a number of armed robberies committed over the course of approximately one week, the Court identified the general principle as being that where offences arise out the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent.
[33] (1981) 27 SASR 481.
Peek J in R v Bagnato[34] helpfully set out the principles involved. He stated:[35]
Of course, words such as “course of criminal conduct” or “activity” or “one transaction” or indeed “one multi-faceted course of criminal conduct” will always be somewhat unspecific. The matter is really one of degree and one proceeds by reference to a postulated core concept. A passage from the judgment of Wells J in Attorney-General v Tichy is often referred to in this context and is as follows:[36]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s rights to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[34] (2011) 112 SASR 39.
[35] R v Bagnato (2011) 112 SASR 39, 59 [76].
[36] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93.
Subject to statutory requirements, a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.[37] Proportionality, in this case, can be achieved by the use of concurrent and partially concurrent sentences.
[37] R v Hoare (1989) 167 CLR 348.
The principle of proportionality prevents the imposition of a disproportionate punishment for the total offending of a defendant.[38] Proportionality and the factors which govern it are often the same factors relevant to “totality”. Kourakis J (as he then was) in R v Copeland (No 2)[39] stated:
The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality.
[38] Richard Edney and Mirko Bagaric, Australian Sentencing Principles and Practice (Cambridge University Press, 2007).
[39] (2010) 108 SASR 398, 426 [107].
The Court must also give consideration to the type of controlled drug.
The fact that methylamphetamine is readily available, addictive and has very harmful effects has been acknowledged recently by this Court in R v Dang[40] and R v Kong.[41] The Court noted that the abuse of illicit drugs causes great social harm and the treatment and management of drug addictions places a substantial financial burden on the State and Commonwealth health budgets. Parliament has imposed substantial penalties for dealing in drugs to both punish and deter those who are attracted to the profits that dealing can generate.
[40] [2015] SASCFC 154.
[41] (2013) 115 SASR 425.
Recently, in R v Young[42] the Court, sitting a bench of five judges, considered that due to relevant statutory amendments the sentencing standards set out in R v Mangelsdorf[43] should be reviewed. Alterations by the Court to the sentencing standards occurred, practically speaking, only for offending at the lower end of the range of objective seriousness.
[42] [2016] SASCFC 102.
[43] (1995) 66 SASR 60.
Whatever label one attaches to the conduct of the three applicants their offending could not be described as being at the lower end of objective seriousness. Their offending was largely commercially driven and occurred over a substantial period of time.
Section 44(2) of the Controlled Substances Act 1984 (SA) requires a court to determine penalty on the basis that controlled drugs, other than cannabis, are all categorised as equally harmful. The offending here in relation to cannabis, particularly given the quantity involved, is serious. However a sentence for trafficking in cannabis is likely to be less than a sentence for trafficking in other drugs.[44]
[44] R v Faehrmann [2014] SASCFC 25; R v Mangelsdorf (1995) 66 SASR 60.
Whilst the general principles of sentencing apply, the Court has stated that general deterrence must be given great weight in the “balancing of the competing sentencing objectives in the case of commercial drug dealers.”[45]
[45] R v Kong (2013) 115 SASR 425, 443 [90].
The offending of each applicant was serious and persisted over a long period of time. The charges are representative of a course of conduct. The applicants can only be punished in relation to the offences charged but their offending must be seen in that wider context. Whilst all three applicants were addicted to drugs to varying degrees commercial gain was the motivating factor.
The role each applicant played in the criminal enterprise, although similar, was sufficiently disparate to warrant slightly different starting points for the various offences.
Whitaker
For the offending which attracted a maximum of 10 per cent discount I apply s 18A of the Act. Had it not been for the pleas of guilty I would have imposed a sentence of 13 years. To allow for the pleas that will be reduced to 11 years and nine months imprisonment.
For the offending which attracted a maximum of 30 per cent discount I apply s 18A of the Act. Had it not been for the pleas of guilty I would have imposed a sentence of eight years imprisonment. To allow for the pleas that will be reduced to five years and eight months imprisonment.
In relation to those two sentences I have to consider the question of concurrency or partial concurrency. In my view they should be largely but not totally concurrent to reflect the fact that this was an ongoing business.
Using s 18A I would impose a sentence of 14 years imprisonment. No adjustment needs to be made for “totality”.
Whitaker is still a relatively young man. His prospects of rehabilitation are good and he has used his time in custody wisely.
I would fix a non-parole period of seven years and eight months.
Donald
For the offending which attracted a maximum of 10 per cent discount I apply s 18A of the Act. Had it not been for the pleas of guilty I would have imposed a sentence of 14 years. To allow for the pleas that will be reduced to 12 years and eight months imprisonment.
For the offending which attracted a 30 per cent discount I apply s 18A of the Act. Had it not been for the pleas of guilty I would have imposed a sentence of five years imprisonment. To allow for the pleas that will be reduced to three years and six months imprisonment.
In relation to count 104 namely driving dangerously to escape police pursuit the plea of guilty entitled the applicant to a discount of up to 30 per cent. I would have imposed a sentence of 12 months imprisonment. To allow for the plea I would reduce the sentence to eight months and two weeks.
In relation to those three sentences I have to consider the question of concurrency or partial concurrency. In my view they should be largely but not totally concurrent
Using s 18A I would impose a sentence of 14 years imprisonment. No adjustment needs to be made for “totality”.
Donald is still a relatively young man who, like Whitaker, has used his time in custody wisely. His prospects of rehabilitation are good.
I would fix a non-parole period of seven years and eight months.
I would order that Donald be disqualified from holding or obtaining a drivers licence for a period of two years.
Pitt
Pitt pleaded guilty to all of the offences charged at the one time. The pleas were late and attracted up to 10 per cent discount.
Had it not been for the pleas of guilty I would have imposed a sentence of 12 years and six months imprisonment. To allow for the pleas that sentence will be reduced to 11 years and three months imprisonment. I would impose a non-parole period of five years and nine months. From that sentence and non-parole period three months needs to be deducted for time in custody and on home detention bail leaving a sentence of 11 years imprisonment and a non-parole period of five years and six months.
Orders
I would grant permission to each applicant to appeal.
In relation to the applicant Whitaker, I would allow the appeal and set aside the Judge’s sentence. I would sentence the applicant to a period of 14 years imprisonment with a non-parole period of seven years and eight months. I would order the sentence and non-parole period to commence on 5 December 2013 the date the applicant went into custody.
In relation to the applicant Donald, I would allow the appeal and set aside the Judge’s sentence. I would sentence the applicant to a period of 14 years imprisonment with a non-parole period of seven years and eight months. I would order the sentence and non-parole period to commence on the 30 November 2013 the date the applicant went into custody. I would order that Donald be disqualified from holding or obtaining a drivers licence for a period of two years.
In relation to the applicant Pitt I would allow the appeal and set aside the Judge’s sentence. I would sentence the applicant to a period of 11 years with a non-parole period of five years and six months. I would order the sentence and non-parole period to commence on 23 November 2015 the date the applicant went into custody.
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