R v Malesevic

R v MALESEVIC
[1999] SASC 321

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

DOYLE CJ. This is an appeal against sentence.
The appellant pleaded guilty in the District Court to two counts of taking part in the sale of cannabis, contrary to s 32(1)(d) of the Controlled Substances Act.
In each case the amount of cannabis involved was two kilograms. Accordingly, the maximum penalty on each count was imprisonment for 10 years or a fine of $50,000 or both.
The District Court judge imposed a single sentence of imprisonment for 2 years 8 months, and fixed a non-parole period of 1 year 9 months. This sentence is said to be excessive.
Counsel for the appellant also submits that the District Court judge erred in relation to two of the steps that he took in arriving at the sentence that he imposed. It is convenient to deal with one of those complaints immediately.
In fixing the sentence the District Court judge gave credit for the appellant’s plea of guilty, and also for time spent in custody. It is common ground that the judge miscalculated the time spent in custody by one month, to the appellant’s disadvantage.
The judge also gave credit for time spent on home detention bail. The appellant was on home detention bail for slightly in excess of six months. There was no obligation on the judge to reduce the sentence that would otherwise be imposed on that account, although the judge was at liberty to make some reduction on that account if he saw fit.
In R v Bruce and Hollick [1998] SASC 6831 I said, in the context of the particular appeal, that the fact that each appellant had served several months on home detention bail was not a matter that should have caused the judge to impose a lesser sentence. By that I meant that the failure to do so was not an error. I did not intend to say that a judge could not make allowance for time on home detention bail if the judge saw fit. The judge clearly intended to do so in the present case, and that was within the scope of his discretion.
It is therefore appropriate to correct the miscalculation made by the sentencing judge, as he clearly intended to give full credit for the time spent in custody and some credit for the time spent on home detention bail. The head sentence should be reduced by one month, and an appropriate reduction should also be made to the non-parole period.
Subject to that it is appropriate to consider the complaint that the sentence is in any event excessive, and the other complaint about the process adopted by the judge.
Each sale made involved the sale of cannabis that the appellant had collected from friends who were growing cannabis, partly for their own use. They were growing less than 10 plants each. Accordingly, if the cannabis were grown for their own consumption, each of these persons faced a maximum fine of $500. However, clearly their activity went beyond that.
The appellant’s scheme involved obtaining cannabis from these people and selling it interstate. He was the organiser and co-ordinator of the scheme. The offences in question were committed in the course of that scheme.
The appellant is to be punished only for these two offences. The relevance of the scheme is that it reveals the appellant’s role as co-ordinator and promoter. The scheme was also relevant because it means that the offences in question cannot be regarded as isolated incidents. Indeed, they are to be regarded as part of an ongoing commercial enterprise.
The appellant had recruited about 20 people to provide cannabis to him. This is an aggravating feature of the offences.
The appellant is 37 years of age. He was assisted in the enterprise by his female partner of 15 years, who was sentenced to imprisonment for 9 months, the sentence being suspended. The appellant has four children. He has worked for some years as a steel fixer. At the time of the offences he had recently established a landscaping business. That collapsed on his arrest, leaving him with substantial debts.
The appellant has some prior convictions. Most are traffic matters. In 1983 he was convicted for building break and felony. In 1986 he was convicted for possessing cannabis and for possessing equipment contrary to s 31 of the Controlled Substances Act. In 1993 he was convicted for possessing cannabis and for producing cannabis. Each of these offences attracted only a fine, and I am prepared to assume that each offence was a relatively minor one.
The appellant was to be sentenced as a person with some relevant but minor convictions. He was the prime mover in a scheme involving about 20 growers, who provided cannabis for him to sell. He made two sales pursuant to that scheme.
As I said in R v Mangelsdorf (1995) 60 SASR 60 at 68, the court has repeatedly stressed the need to recognise the severe penalties prescribed by Parliament for offences against s 32(1) of the Controlled Substances Act.
I regard the appellant’s offending as a quite serious instance of its type. The appellant was the prime mover in a scheme into which he recruited others. The commercial element is obvious. The weight of cannabis is at the bottom of the scale that attracts a penalty of 10 years’ imprisonment or a fine of $50,000. I do not regard that as a significant mitigating factor. The offences remain serious.
I have no doubt that having regard to the nature of the offences, a sentence of imprisonment was called for. No other penalty would adequately reflect the seriousness of the offence.
Counsel for the appellant has raised, as a matter relevant, the sentences imposed upon the growers whom the appellant recruited. Information about this was placed before the sentencing judge.
There were 19 of these people. Ten of them pleaded guilty to offences that included selling cannabis or taking part in the sale of cannabis. They were dealt with in the Magistrates Court. One of them was released on a bond without recording a conviction. The rest received suspended sentences of imprisonment ranging from one month to three months.
The other nine people pleaded guilty to a range of offences. A number of them pleaded guilty to possessing cannabis for supply or for sale. Once again, they all escaped with light penalties. The heaviest penalties appear to have been a one month suspended sentence of imprisonment.
I assume that in all or most of these cases the offence charge attracted a maximum penalty of 2 years’ imprisonment or a fine of $2,000. I do not know the circumstances of the offenders, nor do I know the allegations made to the court.
Nevertheless, I have to say that I am surprised and somewhat concerned by the pattern of what appears to be lenient treatment for what remains a serious offence, even if it attracts a maximum penalty of 2 years’ imprisonment. However, on the limited information available, I cannot go beyond that.
It is submitted that there was a marked disparity between the penalties imposed upon these people, and that imposed upon the appellant.
That submission raises the question whether the sentences imposed in the Magistrates Court should have influenced the sentence to be imposed by the District Court.
In my opinion they should not. In R v MacGowan (1986) 42 SASR 580 King CJ summarised the relevant principles, drawing on the decision of the High Court in Lowe v R (1984) 154 CLR 606. He stated the principles in terms of co-offenders. That is my understanding. There is some flexibility about that term, but in my opinion it does not apply to persons charged with different offences, offences with which the offender in question is not charged, when the only link is that there is a similarity in the offences and it can be said that the conduct of the offender in question was involved in the commission by the other persons of the offences for which they were sentenced. I consider that the principles to which I have referred are confined to cases in which the offenders are in truth co-offenders, or at least cases in which one is dealing with sentences for what are in substance one incident or course of conduct. That is not the case here.
Even if the principle were to be applied, it is difficult to see what force it could have. It is likely that the offenders dealt with in the Magistrates Court were charged with an offence attracting a different maximum. The personal circumstances of the offenders are not before us. Even if this information was available, as King CJ said, there will be occasions on which the lower sentence is so inadequate:
“... that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience.”

I consider that to treat the sentences in the Magistrates Court as setting any kind of measure against which the appellant should be sentenced would be to create or compound an error which would be unacceptable.

I consider that the District Court judge was correct in not allowing the sentences imposed by the Magistrates Court to influence the sentence that he imposed.
Having cleared that matter out of the way, I return to the question of whether the sentence imposed was excessive.
The District Court judge took as a starting point a single sentence of imprisonment for 4 years 6 months. From that he made a deduction for the plea of guilty, for time spent in custody, and for time on home detention bail. He deducted twenty-two months on account of those matters. I remind myself that in doing so he probably deducted one month less for the time spent in custody than he had intended. That led to a head sentence of 32 months’ imprisonment.
Complaint is made that the starting point is excessive for the two offences in question. I disagree. The sentence is a heavy one, but is not excessive having regard to the offences, the leading role that the appellant took, and the fact that he recruited others into the scheme that he established.
I turn now to the fixation of the non-parole period.
It is at this point that counsel submitted that the judge erred. As I have already said, the judge deducted the credit for the plea of guilty, for the time in custody and for the time on home detention bail from the head sentence, and then calculated a non-parole period in relation to the balance head sentence of 32 months’ imprisonment. Counsel for the appellant submits that this is erroneous. She submits that after having arrived at the credit to be given for the guilty plea, and thus having arrived at a notional head sentence, the judge should next have calculated the appropriate non-parole period in relation to that notional head sentence, and should then have deducted the credit for time in custody and time on home detention bail directly from the head sentence and from the non-parole period.
She submits that unless this is done the credit for the time in custody and on home detention bail will be less than it otherwise would be. She makes the point that if the commencement of the head sentence and of the non-parole period were back-dated to the time at which the appellant were taken into custody the result for which she contends would be achieved. There is no basis in principle, she submits, for taking an approach that produces a different result when the sentence is not or cannot be backdated. In the present case it cannot be back-dated because of the intervening period of home detention custody.
I agree that the approach taken by the District Court judge means that a lesser credit may have been given against the non-parole period for time in custody and on home detention bail, than would have been given on the approach that counsel submits should be taken.
However, I do not agree that a sentencing judge is obliged to take the approach advocated by counsel for the appellant. The fixing of a non-parole period is a distinct step in the sentencing process. It requires the consideration of a number of factors that are equally relevant to the fixing of the head sentence, but as is well known it allows for greater scope to be given to factors personal to the offender: see, for example, The Queen v Creed (1985) 37 SASR 566 and Pight v The Queen (1995) 64 SASR 215. If the Court is giving credit for time spent in custody, as it usually would, it is appropriate for the Court to bear in mind that the extent of the credit given will depend upon whether the period for which credit is given is deducted from the head sentence and the non-parole period, or only from the head sentence and before a non-parole period is calculated. However, in my opinion it cannot be said that the approach advocated by counsel for the appellant is necessarily the correct one and must be adopted. For example, I note that in R v Creed at 568 King CJ referred to the fact that the proportion of the non-parole period to the head sentence was somewhat different if one took into account the period that the offender had spent in custody in that case.
The final issue for the sentencing judge in the sentencing process is the fixation of an appropriate non-parole period, taking into account all of the circumstances relevant to that process, and also bearing in mind any time already spent in custody. As long as the judge makes proper allowance for time spent in custody, complaint cannot validly be made on the basis that the judge failed to take one approach rather than the other to the fixation of the non-parole period. The important thing is that the non-parole period reflect the gravity of the crime, as well as the other matters that should be taken into account: see R v Creed (above). It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non-parole in relation to a notional head sentence, and then to make deductions from each of them.
That it is not necessary to fix a non-parole period by reference to a notional head sentence before deduction of any period in custody is reinforced by a consideration of s 30(2), s 30(5) and s 32(7) of the Criminal Law (Sentencing) Act 1988. Section 30 deals with the commencement of sentences and non-parole periods. Section 30(2) reads:
“(2).. Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may -
(a)make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or
(b)direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.”
The language of the subsection is permissive and enables the court to “have regard” to the period spent in custody. It does not require that there be a strict mathematical calculation. If the court follows the course permitted by s 30(2)(b), the non-parole period will commence on the day on which the defendant was taken into custody: s 30(5). The court has a choice between these two approaches. By contrast, s 32(7) is in rather different terms. That section deals generally with the fixing and extension of non-parole periods. Section 32(7) reads:
“(7) In fixing or extending a non-parole period, the court -
(a)must, if the person in respect of whom the non-parole period is to be fixed or extended is in prison serving a sentence of imprisonment, take into account the period already served; and
(b)(irrelevant).”
This subsection does not say the court “may ... have regard to” the period spent in custody, but that it “must ... take into account” such period. That requires a calculation of greater mathematical precision than do the provisions of s 30(2).
I therefore do not accept that the judge erred in law in the approach that he took. The ultimate question is whether the sentence is manifestly excessive, bearing in mind the time that the appellant had already spent in custody.
It is appropriate for a sentencing judge to bear in mind the impact on the sentence of time already spent in custody, and on home detention bail when credit is to be given for that time. It is desirable to consider whether an appropriate reflection of those matters requires the fixation of a lower non-parole period in relation to the final head sentence than might at first seem appropriate. But I emphasise that the ultimate issue is the fixation of the appropriate non-parole period in relation to the final head sentence.
As I have earlier emphasised, I do not consider that a sentencing judge can be required to follow either one of these approaches as a matter of law. At the end of the day, one must stand back and consider the adequacy of the non-parole period in relation to the head sentence.
In the present case, the sentencing judge had regard to the period spent in custody in fixing the head sentence. Having arrived at the figure of 32 months he then immediately said:
“I fix a non-parole period on this sentence of 21 months.”
It is not apparent that he directed his mind to the question of whether some allowance should be made for the period spent in custody in determining that non-parole period. In failing to address his mind to the question it appears that the judge erred. It is therefore necessary for this Court to determine the appropriate non-parole period in relation to the head sentence which the sentencing judge intended to fix, namely the head sentence of 31 months.
Under all the circumstances I consider that it is appropriate to make a greater allowance for the time spent in custody and the time on home detention bail. If the appropriate credit for those matters is, in total, approximately ten months, the effect of the judge’s order is that the effective non-parole period has become a period of about 31 months, rather than 21 months. I consider that that is too high. Under the circumstances, I would fix a non-parole period of 16 months.
Accordingly, I would allow the appeal, set aside the sentence imposed by the District Court, and substitute a single sentence of imprisonment for a period of 31 months, that figure incorporating the correction that I earlier indicated should be made. In relation to that head sentence I would fix a non-parole period of 16 months. The head sentence and non-parole period should operate from the date upon which they were imposed, 29 April 1999.
BLEBY J. I agree with the orders proposed by the Chief Justice. I also agree with his reasons.
WICKS J. I agree with the orders proposed by Doyle CJ for the reasons he gives.

[1999] SASC 321

6 August 1999