R v McVittie - [2002] NSWCCA 344

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v McVittie [2002] NSWCCA 344

FILE NUMBER(S):
60355/02

HEARING DATE(S): 13 August 2002

JUDGMENT DATE: 13/08/2002

PARTIES:
R v Leslie John McVittie

JUDGMENT OF: Giles JA Wood CJ at CL Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 01/21/0177

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
E Wilkins - Crown/appellant
M Paish - Respondent

SOLICITORS:
S E O'Connor - Crown/Appellant
D J Humphreys - Respondent

CATCHWORDS:
Crown appeal - over 3 months conducted business of supplying methylamphetamine and cannabis leaf - was on parole for previous drug offence - sentence 3 years imprisonment and 2 years non-parole period - order for periodic detention - effective sentence of 15 months imprisonment, 7 months period detention and 12 months parole - query whether could order partial periodic detention - sentence manifestly lenient - particular errors in seeing self-interest as contrition and giving credit of 2 months imprisonment for a reporting condtion while on bail - substituted sentence 3 years 6 months full-time custody with non-parole period 2 years 4 months.

LEGISLATION CITED:

DECISION:
Appeal upheld. Sentence varied to imprisonment for 3 years and 6 months to commence on 5 January 2001 and to expire on 4 July 2004. Non-parole period 2 years 4 months to commence on 5 January 2001 and to expire on 4 May 2003. 5 May 2003 specified as the earliest date on which the respondent may be released on parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60355/02
DC 01/21/0177
GILES JA
WOOD CJ at CL
LEVINE J
Tuesday 13 August 2002

R v McVITTIE

Judgment

GILES JA: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912, against a sentence imposed on the respondent by Williams DCJ on 5 June 2002.
The sentence
The respondent pleaded guilty to the charge that between 7 October 1999 and 9 December 1999 at Glendenning and other places in New South Wales he supplied a prohibited drug, namely methylamphetamine. The offence is found in s 25(1) of the Drug Misuse and Trafficking Act 1985 (“the Drug Act”), and by s 32(1)(g) of that Act carries a maximum penalty of 15 years’ imprisonment and/or a fine of $220,000. The respondent asked that there be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”) the further offence that between 7 October 1999 and 9 December 1999 at Glendenning and other places he supplied a prohibited drug, namely, cannabis leaf. By s 32(1)(h) of the Drug Act that offence carries a maximum penalty of imprisonment for ten years and/or a fine of $220,000.
The respondent was arrested on 9 December 1999. Bail was refused, and he was in custody for nearly 15 months, (14 months, 3 weeks and 1 day to be precise), until he obtained bail on 23 February 2001. The conditions of bail included that he report daily to the Mt Druitt police station. He did so.
There were contested committal proceedings on charges framed differently from the charge to which the respondent pleaded guilty. The respondent was committed for trial and a trial date of 3 June 2002 was set. On 31 January 2002 the Crown offered to accept a plea to the methylamphetamine offence plus taking into account the cannabis leaf offence. At that time there was not agreement on the facts to be presented to the Court. About a week before the appointed trial date agreement was reached and the respondent indicated his plea of guilty. His plea was formally taken on 3 June 2002.
Williams DCJ sentenced the respondent to imprisonment for 3 years commencing on 6 January 2001, with a non-parole period of 2 years. His Honour ordered that the balance of the sentence from 5 June 2002 be served by way of periodic detention.
It is not entirely clear how his Honour arrived at the commencing date of 6 January 2001. Having stated the proposed sentence of 3 years imprisonment, he said that he took into account, amongst other matters, that the respondent had spent some 15 months in custody and that he had “had quite onerous reporting conditions in respect of a considerable period of time, which, whilst not equating to full time imprisonment, is still an interference with his liberty for that period of time”. It appears that the backdating for 17 months of the commencement of the period of imprisonment was intended to reflect not only the time spent in custody, as was permissible and appropriate (see s 47(2)(a) and 47(3) of the Sentencing Act), but also the impact of the reporting condition. No other explanation presents itself.
It may be that the course taken by his Honour of ordering that part of the period of the sentence of imprisonment be served by way of periodic detention was not consistent with ss 6(1) and 70(1) of the Sentencing Act. By s 6(1) of the Sentencing Act a court that has sentenced a prisoner to imprisonment for not more than 3 years may make a periodic detention order “directing that the sentence be served by way of periodic detention”. The direction is with respect to the sentence, not part of the sentence, and it may be that a periodic detention order must relate to the whole of the sentence of imprisonment and cannot relate to part of it. Section 70(1) specifies a relationship between the commencement of the sentence and the making of the periodic detention order, providing that a court is to fix the date of commencement of the sentence so that the date of commencement occurs no earlier than 7 days and no later than 21 days after the date on which the periodic detention order was made.
The difficulty presented is not cured by s 70(3) of the Sentencing Act, by which a periodic detention order is not invalidated merely because it specifies a date of commencement of the sentence of imprisonment but does not comply with the requirements of the section. The difficulty lies not in the commencing date, but in making a periodic detention order with respect to part of the sentence of imprisonment. It is not necessary to reach a concluded view as to this, and it is fair to say that the submissions we have received did not go into the matter deeply. For the reasons which follow I consider that the Crown appeal should be upheld quite apart from whether the course taken by his Honour was open to him.
The offences
Over the period 7 October 1999 to 9 December 1999 telephone conversations were monitored, pursuant to authorised warrants, showing that the respondent engaged in a substantial business of selling methylamphetamine and cannabis leaf. The substances were sold to a number of different people, many of them regular customers. Some of the sales were to supply dealers who on-sold. From at least one conversation it is evident that the respondent obtained methylamphetamine from the person or persons who “cooked” the substance, and other conversations show the respondent extolling the virtues of his merchandise. Well over 30 individual transactions can be seen in the conversations, but more important the supply of methylamphetamine and cannabis leaf was regular, was carried on as a business, and was significantly to dealers who on-sold. The respondent admitted that he undertook it in order to make money. The individual quantities were not large, but it was a commercial operation of considerable scale.
The respondent was aged 51 at the time. He had a lengthy criminal history. It started as a child, and it included a number of stealing offences for which the respondent served periods of imprisonment and a number of offences of escape from lawful custody and assaulting the police. More particularly, in July 1996 the respondent was sentenced to a minimum term of 2 years 3 months and an additional term of 2 years 9 months for supplying a prohibited drug and in March 1997 he was sentenced to another term of imprisonment, effectively subsumed within the earlier term, for supplying a prohibited drug. He was on parole under the July 1996 sentence when he committed the offences presently in question. He said that he had found part-time employment in a gardening business and took up dealing in the substances to make money to buy into the business. Even if correct, that in no way justifies what he did.
The respondent’s criminal history included conviction for armed robbery. The respondent maintained at the sentencing hearing that he was not guilty of that offence. It appears that his Honour did not place weight on that element of the respondent’s criminal history, since although he referred to it in passing he said that “The more relevant matters and matters of concern” were the recent drug matters. I will take the same course as his Honour in that respect.
The sentencing
Williams DCJ said that there was no doubt that the respondent’s criminality was serious, and referred to the fact that the offences were committed whilst on parole as an aggravating feature. He said that “having regard to the circumstances set out in the facts of the case, and without regard to anything else” he would have considered an appropriate sentence “probably would be four years’ imprisonment”.
After referring to a number of matters, his Honour said:
“Taking those matters into account, I reduce the penalty that I indicated that I thought was appropriate, namely four years’ imprisonment, to one of three years for the plea of guilty and the expression of contrition indicated by him and by that plea.”
It is not clear to what his Honour was referring by “those matters”. The matters to which he had referred included the plea of guilty and contrition, but he had also said that he accepted that the respondent’s conduct whilst on bail and what was set out in the pre-sentence report indicated that some rehabilitation had occurred, as did the fact that the respondent had been able to obtain a part-time job; he had also referred to the 15 months spent in custody and to the reporting condition. Since his Honour returned to the 15 months spent in custody and to the reporting condition when (in his Honour’s words) “dealing with the remaining three year sentence”, it seems to me that a proper understanding of the reasons is that these further matters were not taken into account in arriving at the 3 years. On the better understanding of the reasons, that some rehabilitation had occurred and obtaining a part-time job were probably matters taken into account as going to contrition indicated otherwise than by the plea of guilty.
His Honour then turned to dealing with the remaining 3 year sentence. He said that he took into account the fact that the respondent had some employment, the 15 months spent in custody and the reporting condition. He rejected the suggestion of a suspended sentence made on the respondent’s behalf, saying that the offending was “too serious”, and said that some further custody was called for but that it could be by way of periodic detention.
The sentence of 3 years imprisonment was then stated, and his Honour went on to find special circumstances, to set the non-parole period of 2 years, and to date the sentence from 6 January 2001 and direct that the balance of the non-parole period be served by way of periodic detention.
Consideration
In the result, the respondent was effectively subjected to full time custody for 15 months, periodic detention for 7 months, and parole for 12 months.
The Crown’s principal submission was that the sentence viewed as a whole was manifestly inadequate, although the Crown pointed to particular respects in which it said that there was error which may have led to or contributed to the excessive leniency.
In my opinion that submission should be accepted.
The two errors which in my opinion probably most contributed to the excessive leniency were these.
His Honour observed that it could probably not be said that the plea of guilty was entered into at the earliest opportunity, and that was clearly so. His Honour correctly accepted that there was nonetheless utilitarian value in saving a lengthy trial. His Honour referred also to contrition. In my view the so-called contrition was in truth not contrition. As his Honour said, there was no doubt that the Crown case was quite strong. There was no expression of regret for the harm to the community from the business of selling methylamphetamine and cannabis leaf. The effect of the respondent’s evidence was that he was determined not to offend again and that, having suffered heart attacks, he wished to live an honest life with his children and grandchildren for such time as he could. This and the rehabilitation which his Honour saw in it were not truly contrition, but were rather, self-interest.
It was submitted on the respondent’s behalf that his evidence showed remorse for what the respondent had done in the past, and that it showed it because his change in lifestyle and determination to lead an honest life showed that he was contrite for what he had done in the past. I think it fell well short of contrition in relation to the offence for which he was charged and the offence to be taken into account.
On the respondent’s behalf the same evidence was relied on in another way. It was said that the respondent was at a crossroads in his life, and that his Honour accepted that he had chosen a path of honesty and gave him subjective credit for that choice (I put it in my own words, but I think I have captured the essence of the submission). There is some support for that in his Honour’s reasons. He said this:
“Mr McVittie gave evidence before me and I was relatively impressed by him. Over the last ten years he spent most of his time in custody. As I said, he is aged 51. It may well be that at this point in time he has reached a point in his life where he realises that if he does not change he will basically probably die in prison, which cannot be a very comforting thought to anyone.”
It seems to me that some regard may be paid to this, but it must be remembered firstly, that the respondent had earlier offended and been sentenced to terms of imprisonment for drug offences and, secondly, that the respondent had committed the offences presently in question whilst on parole. Nonetheless I do not think that the so-called contrition properly viewed and the utilitarian value of the plea warranted the reduction of his Honour’s initial 4 years to 3 years. In my opinion, even allowing for the respondent’s health and expressed determination to mend his ways – a determination which, it should be said, he had also expressed in relation to the July 1996 offence – the gravity of the offences and the fact that they were committed whilst on parole and for commercial gain did not permit anything less than a period of imprisonment of 4 years after recognition of the utilitarian value of the plea. I have referred to the circumstance of the commission of the offences on parole, and as to parole it should be stressed that parole is a privilege and abuse of the privilege is a significant aggravating circumstance.
Being of that view, it follows that a periodic detention order was not available. I add that in any event I do not think that it would have been appropriate, but it is unnecessary to go into that.
If his Honour did effectively give credit to the respondent for some two months because of the reporting condition he was, in my view, in error. By his plea the respondent acknowledged the commission of the methylamphetamine offence, and by asking that it be taken into account he acknowledged commission of the cannabis leaf offence. From the time he had bail until the time he was sentenced the respondent was nonetheless not serving the sentence of imprisonment thought appropriate by his Honour. He was at liberty. That the court granting bail considered it necessary that liberty be conditioned upon his reporting to the police does not benefit him when it comes to sentencing. He had committed the offences whilst on parole and reporting was an eminently understandable condition of liberty; it was not a mitigating factor or a benefit in sentencing.
Whether or not these errors fully explain the inadequacy in the sentence, I repeat that I consider that the sentence was manifestly too lenient. The respondent properly emphasised the principles governing a Crown appeal against sentence, referring to the discussion in R v Bennett (1996) 85 A Crim R 76. In my view the effective sentence fell so far short of that which was required that the stringent requirements for the intervention of this Court are met.
Resentencing
It was suggested in connection with the periodic detention order that the matter be remitted to Williams DCJ in the event that re-sentencing were called for. I do not think that that would have been appropriate, whether or not the only matter in issue was the making of the order for periodic detention. As it happens, that is not what is in issue. This Court must re-sentence.
Account must be taken of the time spent in custody, and also of the time for which the respondent has undergone periodic detention. He has spent some eight weekends on periodic detention. I think it became common ground that the account to be taken of the time so spent was neither a strict equivalent of eight weekends nor the entire period of two months which they encompassed, and that the time for which the respondent had undergone periodic detention was to be taken into account in a more broad manner. I do so, and I also take into account that this is a Crown appeal, with its element of double jeopardy. In my opinion, the sentence should be varied to imprisonment for 3 years and 6 months, to commence on 5 January 2001 and to expire on 4 July 2004.
Williams DCJ found special circumstances having regard to the respondent’s health, to what was referred to as the rehabilitation, and to the benefit to the respondent and to the community of “a somewhat longer period of parole subject to supervision”. I see no reason to depart from that finding, and the non parole period should be 2 years 4 months, to commence on 5 January 2001 and to expire on 4 May 2003. 5 May 2003 should be specified as the earliest date on which the respondent may be released on parole.
Earlier in these reasons I referred to the difficulty in the course taken by his Honour in ordering that part of the sentence be served by way of periodic detention. From one point of view it would be of assistance if the armoury of sentencing options included an ability to meld a period of custody with periodic detention. From another point of view there are significant practical difficulties in doing so, not least that where (unlike in the present case) any periodic detention would commence at a future time the present requirements for ordering periodic detention could scarcely be honoured. Whether or not the course taken by his Honour was open to him is a matter which can be left for another day, but whether or not that course, if not presently open to a sentencing judge, should be open, is something to which the authorities might care to give attention.
WOOD CJ at CL: I agree. I merely wish to add that this case, and the other Crown appeal determined today, R v Sallie Ann McGourty, each underline the circumstance that sentencing judges, who impose manifestly lenient sentences, do not do offenders or the community any favour. On the contrary, if upon a Crown appeal the Court is forced to intervene, the respondent faces the prospect of having an expectation of leniency crushed. To some extent this is mitigated by the principal of double jeopardy which will normally, although not inevitably, result in a sentence which is somewhat less severe than that which should have been imposed at first instance.
Notwithstanding, the regrettable fact remains that very considerable hardship is occasioned, in the case of a successful Crown appeal, where an offender is returned to custody, contrary to the expectation encouraged by the original sentence, particularly where that offender has begun to reorder his or her life. In some instances the fact of a successful appeal will not only dash the unrealistic hopes of the offender, but it may even result in that respondent abandoning a post-sentence commitment to rehabilitation. To that extent neither the interests of the community or of the offender are well served.

LEVINE J: I agree with the orders proposed by the presiding judge and his reasons and I expressly endorse the remarks of the Chief Judge at Common Law.
GILES JA: The orders will therefore be those which I proposed.
The Court will now adjourn.
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LAST UPDATED: 21/08/2002