R v Focarelli No. Sccrm-00-214

R v FOCARELLI
[2000] SASC 456

Court of Criminal Appeal: Doyle CJ, Olsson and Bleby JJ

1................ DOYLE CJ....... This is an appeal against sentence

Mr Focarelli was sentenced in the District Court for three offences charged on a single Information. The first count charged an offence of selling heroin between 30 April 1999 and 12 May 1999. The second count charged an offence of assault occasioning actual bodily harm committed on 11 May 1999. The third count charged an offence of possessing heroin for sale on 21 May 1999. Mr Focarelli pleaded not guilty. He was found guilty by a jury.
The maximum penalty for each of the heroin offences is 25 years imprisonment or a fine of $200000 or both. The maximum penalty for the assault is five years imprisonment.
When sentenced by the District Court judge, Mr Focarelli was serving a sentence of imprisonment. On 20 March 2000 he had appeared before another District Court judge. He had pleaded guilty to offences of possessing heroin for supply and possessing cannabis for supply. Both offences occurred on 7 April 1999, not long before the offences, the subject of the present appeal.
In brief, Mr Focarelli had been asked by a prisoner at Mobilong Prison to supply him with some drugs. He agreed to do so. He was apprehended near the outer fence of the prison carrying a tennis ball wrapped in plastic tape and containing the cannabis and heroin. But for the plea of guilty, that judge would have sentenced him to imprisonment for two years. Because of the plea, the sentence was reduced to 20 months and the judge fixed a non-parole period of 12 months. The head sentence and non-parole period were directed to begin on 20 March 2000. Accordingly, when the sentence now under appeal was passed, Mr Focarelli had served just over six months of the 12 month non-parole period.
The sentencing judge in the present case exercised the power conferred by s 18A of the Criminal Law (Sentencing) Act to pass a single sentence. He said that he had regard to the principle of totality. He imposed a head sentence of nine years and six months, and directed that the sentence commence at the expiration of the sentence then being served. The judge noted that he was required to fix a new non-parole period. He noted that Mr Focarelli had six months to serve of his existing non-parole period. He fixed a non-parole period of seven years.
Three submissions are advanced in support of the claim that the sentence is excessive. The first might be described as a technical point. The complaint is that the order of the court directs that the head sentence and non-parole period are to commence at the expiration of the sentence already being served. It is common ground that if that is what the judge did, he erred.
The second complaint is that the sentence is excessive. The third complaint, which is really a variant of the second, is that the sentencing judge failed to have sufficient regard to the principle of totality in the sense of failing to take account of the combined impact of the sentence being passed and the sentence already being served. It is argued that the sentence is excessive when considered in this light.
As to the first submission advanced on appeal, it is conceded by counsel for the Director of Public Prosecutions that the judge erred. Section 32(1) of the Criminal Law (Sentencing) Act required the judge to review the existing non-parole period and to extend it by such period as the court deemed fit. That is, it required the judge to fix a new non-parole period that included and took account of the balance of the existing non-parole period.
The section does not permit a sentencing court to fix a new non-parole period which was to operate cumulatively upon an existing non-parole period. Having regard to the sentencing remarks, I have no doubt that the District Court judge was aware of this provision and intended to fix a non-parole period of seven years inclusive of the balance of six months yet to be served under the earlier non-parole period. That is, he was intending to add a further six years six months to the balance of the existing non-parole period.
The endorsement on the Information provides that both head sentence and non-parole period are to commence at the expiration of the sentence being currently served.
The “Report of Prisoner Tried”, which document is, unlike the endorsement on the Information, signed by the judge, provides that the non-parole period is to commence on the date on which the judge fixed sentence. That is consistent with the judge’s intention to add six years six months to the balance of the existing non-parole period. However, the Act does not permit this to be done in this manner. There can be only one non-parole period fixed. There cannot be cumulative and separate non-parole periods. It is not necessary to decide whether either of these court records is the authoritative record of the judge’s decision nor is it necessary to decide whether, as may well be the case, the judge could have recalled his order and corrected it, if asked to do so.
It is clear that both records of the decision record an order that the Act does not permit and it must be corrected. To achieve the judge’s intention, the new non-parole period should be seven years six months operating from 20 March 2000, the date on which Mr Focarelli was first sentenced. That is an effective increase of six years six months. Instead of serving a non-parole period of one year, Mr Focarelli would then serve a non-parole period of seven years six months. The issue is whether the head sentence and that non-parole period amount to an excessive sentence.
Before turning to the other two submissions advanced on appeal, I refer briefly to certain matters relevant to the sentence under appeal. The evidence before the jury, which must have been accepted, established that for some time Mr Focarelli had sold and supplied heroin in relatively small quantities to Mr and Mrs Robinson. Mr Robinson had a longstanding addiction to heroin and his wife used heroin as well.
The first count on which Mr Focarelli was convicted related to a sale of heroin to Mr Robinson between 30 April 1999 and 12 May 1999. The sale was made on credit, Mr Robinson having exhausted the funds available to him. Evidence before the jury indicated that the Robinsons had spent about $7000 purchasing heroin from Mr Focarelli over a period of some months prior to this offence.
Despite demands from Mr Focarelli, Mr Robinson was unable to pay. On 11 May 1999 Mr Focarelli went to the Robinsons and, when Mr Robinson opened the door, Mr Focarelli struck him with what must have been a heavy punch to the side of the head. Mr Robinson was knocked to the ground and was unconscious for a short time. He suffered a fractured cheekbone which required reconstruction. It was a severe and painful injury.
Mr Focarelli continued to contact the Robinsons demanding payment. He arranged to visit their home on 21 May 1999. The Robinsons had contacted the police being in fear of Mr Focarelli. The police were waiting at the house. They arrested Mr Focarelli and found a small quantity of heroin in his car. That is the subject of the third count.
These are serious offences. The maximum penalty for count 1 and count 3 indicates that. The two offences involving heroin were not isolated incidents. Although Mr Focarelli is to be sentenced only for these counts, he is to be sentenced on the basis that they were part of an ongoing business of selling heroin to the Robinsons. They cannot be regarded as isolated transactions. The assault was a serious one. Apart from the injury itself, the assault caused considerable stress and anxiety to the Robinsons.
Mr Focarelli has a poor record. He has quite a long list of convictions stretching back to 1991 when he was 17 years of age. Quite a few of the offences are traffic offences but they are sufficiently numerous to indicate ongoing disregard of the law. I am prepared to put aside the offences that he committed as a juvenile. It is notable, however, that in 1998 he was convicted of assault occasioning actual bodily harm and an offence of common assault. He was sentenced to four months imprisonment.
Mr Focarelli has worked in various jobs. At the time of the offence in question he was living in a stable de facto relationship with a woman. She had three children from that relationship, and Mr Focarelli and the woman were looking after two other children from a previous relationship of hers. It was submitted to the judge that Mr Focarelli was a good father with genuine concerns for his partner and the children. The judge noted the matters to which I have referred.
As to the heroin offences, he said that they were not at the highest end of the scale for a heroin supplier or dealer but that he regarded Mr Focarelli as a middle range dealer involved in a medium sized commercial operation. I agree with all that.
Putting aside just for the moment the question of totality, it is difficult to say that the head sentence of nine years and six months was manifestly excessive. Although the offences were linked through the dealing in heroin they were all quite distinct offences. Each of them is a very serious offence. It may be allowed that the sentence imposed by the District Court judge was at the upper end of the range but I do not consider that it can be said that the head sentence is manifestly excessive viewed in isolation. I am of the same view in relation to the non-parole period, again viewed in isolation.
I turn to the question of totality. There is authority supporting the view that the principle of totality does not require consideration only of the offences for which sentence is being passed. Support may be found in the case law for the view that the totality principle requires the sentencing judge to consider the total criminality involved not only in the offences for which sentence is being passed, but also in any offence for which the offender is currently serving a sentence. Postiglione v The Queen (1997) 189 CLR 295 at 308 McHugh J, R v Gordon (1994) 71 A Crim R 459 at 466 Hunt CJ.
Such a principle must be applied with caution to ensure that adequate punishment is imposed on a person who is sentenced when serving an existing sentence, but it is appropriate to consider the end result of imposing the new sentence. The link between the offences under consideration in this appeal and the earlier offences is also relevant. That link is supplied by the fact that all offences are linked to Mr Focarelli’s trading in heroin. However, it must be observed the offence committed at Mobilong is a quite distinct transaction and has its own independent element of seriousness. Supplying unlawful drugs is serious enough standing alone. Supplying or attempting to supply drugs to persons detained in prison adds to the seriousness of the offence.
Standing back and looking the matter as a whole, in my opinion, the question is whether the sentence of nine years six months and an additional non-parole period of six years six months is excessive when one takes into account the impact on Mr Focarelli, bearing in mind that he was already serving a head sentence of 20 months. The combined head sentences became one of 11 years two months. One must also take account that the new non-parole period intended by the judge is a total of seven years six months.
This is a matter on which my mind has wavered. The end result is a very heavy sentence. On the other hand, the crimes are serious and Mr Focarelli has a poor record, and shows no real sign of responding to punishment. But so far he has not served a lengthy term of imprisonment. In 1996 he was sentenced to 42 days imprisonment and in 1998 to four months imprisonment. Now he faces a minimum of a further six years six months imprisonment. That length of time in prison will make rehabilitation more difficult. He is now 26 years of age. One would hope that he will now reconsider his approach to life and that he will come to see the futility of his behaviour.
Having heard submissions and after a good deal of thought, I have come to the conclusion that the sentence is excessive but only in relation to the non-parole period. I consider that giving proper weight to considerations of totality and to the public interest in Mr Focarelli’s rehabilitation requires a lower non-parole period. This will ensure that if he is considered fit to be released earlier, he can be released earlier with a view to bringing about his rehabilitation. A lower non-parole period does not, of course, mean that Mr Focarelli will necessarily be released any earlier. I consider that the judge erred in increasing the effective total non-parole period by six years and six months. I consider that an appropriate increase in the non-parole period was an additional five years and six months.
Accordingly, I would allow the appeal. I would set aside the sentence imposed by the District Court. I would, because in this respect I agree with the judge, fix a head sentence of nine years and six months to commence at the expiration of the sentence already being served by Mr Focarelli. I would fix a new non-parole period of six years and six months and direct that it commence from 20 March 2000. That order produces an effective increase of five years six months in the non-parole period.

29.............. OLSSON J....... I agree.

30.............. BLEBY J.......... I agree.

31.............. DOYLE CJ....... Accordingly, the order of the court is as follows:

1...... Appeal allowed.
2. Set aside the sentence imposed by the District Court.
3...... Fix a head sentence of nine years and six months to commence at the expiration of the sentence already being served by Mr Focarelli.
4. Fix a new non-parole period of six years and six months and direct that it commence from 20 March 2000.

[2000] SASC 456

15 December 2000