R v Sparos

[2002] NSWCCA 52

CITATION:	R v Sparos [2002] NSWCCA 52
FILE NUMBER(S):	CCA 60776/01
HEARING DATE(S):	04/03/2002
JUDGMENT DATE:	12 March 2002
PARTIES :	Regina Luke John Sparos
JUDGMENT OF:	Stein JA at 1; Dowd J at 2; Barr J at 61

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3199
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

COUNSEL :	Mr LMB Lamprati- Crown Mr SJ Odgers SC- Respondent
SOLICITORS:	SE O'Connor- Crown
CATCHWORDS:	Crown appeal against inadequacy of sentence - Crown submissions to Sentencing Judge - Young offender - Suspended sentence - Court discretion to dismiss appeal - Matters taken into account - Least sentence properly imposed
LEGISLATION CITED:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985
CASES CITED:	Allpass (1993) 72 A Crim R 561. Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649. C, S and T (Unreported, NSWCCA, 12 October 1989). DPP v Waack (2001) 121 A Crim R 134. Edwards (1993) 67 A Crim R 487. Everett v R (1994) 181 CLR 295. GDP (1991) 53 A Crim R 112. Hayes (1987) 29 A Crim R 452. R v Bachelor (1952) 36 CAR 64. R v Barton [2001] NSWCCA 63. R v Bavadra (2000) 115 A Crim R 152. R v Blackman and Walters [2001] NSWCCA 121. R v Blocki (1991) 56 SASR 250. R v Cacciola (Unreported, NSWCCA, 15 October 1998). R v Camilleri (Unreported, NSWCCA, 8 February 1990). R v Clark (Unreported, NSWCCA, 15 March 1990). R v Crotty (Unreported, NSWCCA, 28 February 1994). R v Dodd (1991) 57 A Crim R 349. R v Howland [1999] NSWCCA 10. R v J (1992) 59 SASR 145. R v Jermyn (1985) 2 NSWLR 194 . R v Lattouf (Unreported, NSWCCA, 12 December 1996). R v Martin (Unreported, NSWCCA, 19 March 1992). R v Mills [1998] 4 VR 235. R v Morgan (1993) 70 A Crim R 368. R v Perese [2001] NSWCCA 478. R v Rose (Unreported, NSWCCA, 23 May 1996). R v Rushby (1977) 1 NSWLR 594. R v Tait and Bartley (1979) 24 ALR 473. R v Thompson (Unreported, NSWCCA, 4 April 1991). R v White (1981) 28 SASR 9. R v Wilton (1981) 28 SASR 362. Yardley v Betts (1979) 22 SASR 108.
DECISION:	1. Crown appeal upheld; 2. Sentence including the fine imposed be quashed; 3. Respondent sentenced to a fixed term of one year, to commence on 12 March 2002, and to expire on 11 March 2003; and 4. Respondent fined $3,500.

60776/01

STEIN JA
DOWD J
BARR J

12 March 2002

Regina v Luke John SPAROS

Judgment

1 STEIN JA: I agree with Dowd J.

2 DOWD J: This is a Crown appeal against inadequacy of sentence imposed by Sides QC DCJ on 19 October 2001, on the sole ground that the sentence was manifestly inadequate. The respondent was sentenced to twelve months imprisonment suspended on him entering into a good behaviour bond for twelve months subject to certain conditions. In addition, the respondent was fined $3,500.00

3 The respondent entered a plea of guilty at the Burwood Local Court to a count of supply prohibited drug, being cannabis leaf, contrary to s25 of the Drug Misuse and Trafficking Act 1985 (‘the Act’), and was committed for trial at the Campbelltown District Court. The offence carries a maximum penalty of 2,000 penalty units or imprisonment for ten years, or both.

4 On sentence, there were two Form 1 matters taken into account. The first matter was an offence under s25 of the Act relating to cocaine, which carried a maximum penalty of 2,000 penalty units or fifteen years imprisonment, or both; and the second offence of being an accessory before the fact armed with an intent to commit a serious indictable offence, which carried a maximum penalty of seven years imprisonment under ss114(1) and 346 of the Crimes Act 1900.

5 The Prosecution advised the Learned Sentencing Judge that although the first Form 1 matter carried a higher maximum sentence, that the cannabis supply charge involved, in the Crown’s view, greater criminality.

Facts

6 The police undertook surveillance of a large-scale drug supply operation in Western Sydney, identifying one Aleck Debas, as a person in whom they were interested. During the course of that investigation, the respondent’s identity became known as being involved in the distribution of cannabis for Debas, and that the respondent was using his own mobile phone number which was diverted through a number of other mobile telephone numbers.

7 The police then intercepted a number of conversations with Debas pursuing the respondent for outstanding money, and there were discussions about the exchange of money and drugs. The respondent also received calls from potential purchasers of drugs.

8 The respondent was selling one ounce bags of cannabis for about $180.00 to $330.00 an ounce. From June to August 1999, some thirteen such transactions took place.

9 The offence of supply cocaine on the Form 1 was a transaction intercepted by police for the sale of one ounce for $300.00 on 13 June 1999.

10 The accessorial offence arose out of a telephone interception of a conversation where the respondent suggested to another that he organise a robbery of a known drug dealer who was likely to have drugs and cash at a house. The police observed two persons on 16 July 1999 go to the back of the drug dealer’s house and leave. The two persons escaped the subsequent police chase. The respondent received a phone call shortly thereafter to say that the person to whom he suggested the robbery said that there was no-one home. That person talked with the respondent about hiding the weapons they had because of the police presence.

Subjective Features

11 The respondent is twenty-one years of age, and the third, in age, of four children. He was eighteen at the time of the subject offences.

12 The respondent was subject to a twelve month good behaviour bond imposed at the Lidcombe Children’s Court when charged with assault occasioning actual bodily harm on 2 March 1997 for his involvement in a murder charge involving another. He was sentenced on 9 March 1999 to a recognisance, subject to the supervision of the Probation and Parole Service on the basis that he would give evidence for the Crown. The respondent was subject to that recognisance at the time of the offence the subject of this appeal.

13 The respondent spent thirty-nine days in custody following his arrest.

14 A pre-sentence report of the Probation and Parole Service was admitted in evidence. It reported that the respondent was raised in a supportive family environment. After his conviction for assault occasioning actual bodily harm, the respondent only attended one appointment for a psychologist’s counselling assessment, notwithstanding that he was directed to have further appointments. The respondent did not believe that he needed it.

15 The report showed that the respondent said that he had never used drugs, and that that was a non-drinker, which statement was supported by his parents. They said they had never seen signs of drug use. This was later qualified in a letter to the Sentencing Judge, in which the respondent admitted use of the drugs Cocaine and Cannabis. The respondent had continuous employment since late 1999, with a strong reference from his employer. He said, like so many others do, that he had associated with bad companions, but that he was now in a stable relationship. The reporting officer considered that there would be little benefit from further supervision, the respondent having completed supervision for over two years.

16 The respondent’s employer for the preceding two years described the respondent as ashamed of his past; that he was a changed person; that he was a good and loyal worker as a qualified fencer; that the respondent was diligent, punctual and efficient; and that he was a team player with great people skills.

Remarks on Sentence

17 His Honour indicated that the plea of guilty was taken into account, and, having been entered at the earliest opportunity, the respondent was entitled to a twenty-five per cent reduction in the length of the custodial sentence. His Honour found that the plea of guilty was in part motivated by contrition.

18 His Honour found that the respondent was not in the

“…. upper echelons of the drug trafficking hierarchy”,

nor was he an organiser or financier, and there was no evidence of unexplained wealth.

19 His Honour found that the respondent was a dealer receiving drugs from a supplier, and on-selling them to the final users. This latter description, in my view, aptly describes the respondent.

20 The respondent was eighteen years of age at the time of the offences the subject of this appeal.

21 The Learned Sentencing Judge, in my view, quite correctly found that the respondent had rehabilitated himself, and that full-time or part-time custody brought with it a real chance that rehabilitation might be undone.

Crown Submissions at Time of Sentence

22 Although the Crown in this appeal acknowledged that the representative for the Crown in the sentence proceedings that a suspended sentence would be available, and that the Court is entitled to take this into account in the exercise of the Court’s discretion as to whether it should re-sentence the respondent, I am not sure that this correctly states the position of the Crown at the sentencing hearing.

23 The actual words used by the Crown representative were set out at page 1 and 2 of the Sentencing hearing of Friday 19 October 2001, beginning at line 51:

“I’ll hand up to your Honour agreed facts, antecedents history and six different sentence statistics in relation to matters dealt with for cannabis leaf. The bottom line is that it’s certainly within range, given the broad spectrum of what is contained on those sentencing statistics, whilst it doesn’t disclose the nature and weight of drugs involved it’s certainly available to your Honour to give a non-custodial sentence, notwithstanding the fact that the current legislation is suggestive of the fact that a custodial sentence should be imposed, but it’s certainly within range to impose a non-custodial sentence, which totally surprised me”.

24 It is submitted by the respondent that in accordance with R v Wilton (1981) 28 SASR 362, where a Crown Appeal has been brought against a suspended sentence, King CJ held at 367-368:

“It is necessary to consider whether the prosecution should be allowed to raise on appeal the contention that the sentence ought not to have been suspended when [that] contention was not put in the Court below. The consequence of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley (1979) 24 ALR 473 by “double jeopardy”. In my opinion, this Court should allow the prosecution to put to it, on a appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course”.

25 These remarks were approved by the High Court in Everett v R (1994) 181 CLR 295. This decision has also been followed in New South Wales in relation to Crown appeals: see R v Jermyn (1985) 2 NSWLR 194 at 203-204, and Comptroller-General of Customs v D’Aquino Bros Pty Ltd (1996) 135 ALR 649.

26 It was also submitted for the respondent that this has great significance where the Crown is asking an appellate Court to reverse the imposition of a non-custodial sentence, and the prosecutor’s conduct induced the judge to the view that a non-custodial sentence was open to the Learned Sentencing Judge, on the facts: Allpass (1993) 72 A Crim R 561.

27 The respondent submitted that there is nothing exceptional about the present case to require the appeal to be allowed, and that it was open to the Learned Sentencing Judge to take into account exceptional circumstances, in not imposing a full-time sentence.

28 In my view, the passage quoted above by the Crown representative at the sentencing hearing, was in fact simply a comment by him as to the sentencing statistics that were handed up. Those sentencing statistics were available to this Court, and it is clearly an acknowledgment of what is in the statistics as a fact rather than a Crown submission, that this is an appropriate case for a non-custodial sentence.

29 The statement that a suspended sentence was within the range in this case simply was the statement that it has happened before on a statistical basis. The statistics, it should be remembered, do not include an analysis of the nature of the Form 1 matters taken into account, and it is therefore very difficult to analyse the weight to be accorded to the totality of the sentence, in the statistics provided.

30 The Court has been referred to DPP v Waack (2001) 121 A Crim R 134, where a concession was clearly dragged by the judge from the prosecutor, who was drawn beyond his normal submission. That was certainly not the case here, but the case underlines the issue of the significance of what is said at sentencing.

31 I consider in the present case that the submission of the Crown representative was not such as to inhibit this Court on the issue of the Court’s discretion as to whether it should re-sentence the respondent if error is found.

Rehabilitation

32 Mr Odgers SC, on behalf of the respondent, relied on the decision of C, S and T (Unreported, NSWCCA, 12 October 1989), which was endorsed in GDP (1991) 53 A Crim R 112 at 116. Mr Odgers SC also cited R v Mills [1998] 4 VR 235 at 241, where the Victorian Court of Appeal endorsed the proposition that youth of the offender should be a primary consideration, and rehabilitation is usually more important than general deterrence, and that a youthful offender should not be sent to an adult prison if it can be avoided.

33 Counsel for the respondent also relied on R v Blackman and Walters [2001] NSWCCA 121, per Wood CJ at CL, who held at paragraph 37 that all aspects of the matter had to be considered, as well as the interests of society and rehabilitation of the offender, and that there may be room for the exercise of mercy and leniency. Justice Wood in that case further endorsed King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-113.

34 Counsel for the respondent set out in his submissions all of the factors that operated in favour of the respondent, and it is clear that there was a strong case on rehabilitation, particularly when taking into account the report of the Probation and Parole Service and the changes in his life which they found.

35 It was also put on behalf of the respondent that suspension of sentence is an important sentencing option in the case of young offenders: Edwards (1993) 67 A Crim R 487; R v Blocki (1991) 56 SASR 250 at 252 (both cited by Wood CJ at CL in Blackman & Walters).

36 It was put on behalf of the respondent that the Court should exercise its discretion and not re-sentence, even if the Court concluded that the Learned Sentencing Judge had erred, particularly because of the post-sentence rehabilitation and the danger of the rehabilitation being brought undone: Hayes (1987) 29 A Crim R 452 at 457; R v Crotty (Unreported, NSWCCA, 28 February 1994); and R v Lattouf (Unreported, NSWCCA, 12 December 1996).

37 The Crown relies on the need to reflect the objective seriousness of the crime: R v Rushby (1977) 1 NSWLR 594; and R v Dodd (1991) 57 A Crim R 349 at 354. The change to which the plea was entered and the two Form 1 matters were all serious crimes.

38 In circumstances such as this, proportionality must be maintained between the issues of deterrence and humanity, but subjective factors must not be allowed to obscure the objective circumstances of a case: R v Martin (Unreported, NSWCCA, 19 March 1992).

39 Taking into account the objective seriousness of the offence for which the respondent stood for sentence, I consider that the penalty imposed by the Learned Sentencing Judge was manifestly inadequate.

40 In R v Camilleri (Unreported, NSWCCA, 8 February 1990), the Court held that:

“In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and, whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment that is the protection of the public. The fundamental purpose of punishment is the protection of society”.

Matters Taken into Account

41 Notwithstanding the comment of the Learned Sentencing Judge that the matters on the Form 1 were “taken into account”, there is nothing in the judgment to show that His Honour gave weight to the two very serious offences taken into account on the Form 1, and there is nothing in the sentence to indicate that there was any enlargement of the sentence, as a result of the taking into account of those offences.

42 Where an offender has committed more than one offence, the ultimate sentence imposed should reflect the totality of criminality in relation to the offences charged. The fact that two of those offences have been “taken into account” does not mean that they should be treated by the Sentencing Judge as though they were pleas of guilty to the two offences, as this would otherwise destroy the efficacy of the procedure, and provide no incentive to have matters dealt with. It does not however mean that only very little, by way of additional penalty, should be imposed in respect of those matters: R v Morgan (1993) 70 A Crim R 368 at 372.

43 The Cocaine offence carried a much greater penalty, although I accept, as His Honour did, the Crown submission at the sentencing process, that the greater criminality was involved in the cannabis offences, relating as they did to not less than thirteen occasions during a fairly limited period.

44 I agree with the Learned Sentencing Judge that the respondent was not at the top of the hierarchy of drug trafficking, but His Honour correctly noted that the industry of trafficking only survives because persons such as the respondent are prepared to play their part:

“…. (the evidence) does reveal that he was involved in drug trafficking on a commercial basis”.

45 In R v Clark (Unreported, NSWCCA, 15 March 1990), Hunt J, as he then was, said at page 3:

“This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial sentence be appropriate…. Trafficking alone in any substantial degree should normally lead to a custodial sentence”.

46 This proposition has been numerously applied by both sentencing judges and this Court since then. I particularly refer to the judgment of Priestley JA, with whom the other judges agreed, in R v Cacciola (Unreported, NSWCCA, 15 October 1998), at page 13.

47 I accept the Crown’s submissions in these proceedings that rehabilitation, however exceptional, will not at law, amount to exceptional circumstances warranting other than a custodial order.

48 In R v Thompson (Unreported, NSWCCA, 4 April 1991), Hunt J, as he then was, said at page 8:

“[A]chievement of rehabilitation, however exceptional that fact itself may be, would not without more amount to an exceptional circumstance warranting other than a custodial order. Where, for example, there is medical evidence that there is a serious risk that the rehabilitation so far achieved would be destroyed by a custodial sentence, that additional fact could in the particular case constitute that rehabilitation an exceptional circumstance. Everything will depend upon the particular case involved”.

49 His Honour quite correctly took into account the plea of guilty and the very strong subjective case of the respondent, but in my view, His Honour was in error in not imposing a full-time custodial sentence for the cannabis offence, particularly taking into account that the respondent was subject to a recognisance at the time the offence was committed, which is a serious aggravating factor. The sentence and fine imposed were manifestly in error.

50 The issue of the obligation of the Court to identify the components of the sentence relating to different offences, and the actual imposition of those offences was considered recently in R v Perese [2001] NSWCCA 478, reported in vol. 9, no.1 2002, CLN. McClellan J, with whom Beazley JA agreed, set out the settled principles for taking matters into account at paragraph 81:

“(a) the penalty imposed when a matter is taken into account must not exceed the maximum penalty which the court could have imposed in respect of the primary offence; (s33(3)).

(b) the sentence for the foundation offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton [2001] NSWCCA 63.

(c) the sentence to be imposed must reflect the totality of a person's criminality: R v Morgan (1993) 70 A Crim R 368 at 372; R v Bavadra (2000) 115 A Crim R 152 at 158, [2000] NSWCCA 292; 115 A Crim R 152 at 158.

(d) two important elements which must be reflected in the sentence imposed when additional matters are taken into account are the need for personal deterrence and the community's entitlement to extract retribution from serious offenders: Barton .

(e) the sentence must reflect the fact that the Form 1 procedure provides significant advantages to the administration of justice. These are savings similar to those when a plea of guilty is entered and the opportunity is provided “to clear the offender's slate” allowing an enhanced prospect of rehabilitation: Bavadra . However, there has been some discussion by members of this Court with respect to the reduction to be allowed for these advantages”.

51 In Barton, the Learned Chief Justice, in agreeing with the other judges of the Court at paragraphs 62 and 63:

“In the present context it is clear that the provisions of the statutory regime to which I have referred must have the effect of resulting in a longer sentence or greater penalty than would have been the case if one was dealing only with what is referred to as the primary offence. This has frequently been acknowledged in the authorities ( R v Bachelor (1952) 36 CAR 64 at 67-68; R v White (1981) 28 SASR 9 at 12-14; and R v J (1992) 59 SASR 145 at 152).
It would not be correct to say that when one takes into account matters on the Form 1 that the matters of which guilt has been admitted are in the same position as previous convictions. The reason for that, as Wells J emphasised in White (supra) p12, is that these matters, unlike previous convictions, have not been the subject of any punishment”.

52 In my view, the sentence imposed was for the plea matter manifestly inadequate in not imposing a full-time custodial sentence, and failing to adequately reflect the seriousness of the Form 1 matters.

53 In the light of the errors that I have identified, it is necessary to look at the question of whether this Court should intervene.

54 I reject the submission that the remarks of the Crown at the sentencing process constituted grounds for this Court not to intervene.

55 I consider that the manifest inadequacy and the failure to reflect the additional two sentences in enlarging any penalty warrants this Court intervening, and that the Court should proceed to re-sentencing.

56 The relatively short-term that I propose takes into account the principles of double jeopardy, and is a lesser sentence than would otherwise have been appropriate: see R v Rose (Unreported, NSWCCA, 23 May 1996); R v Howland [1999] NSWCCA 10 at paragraph 7.

57 The sentence takes into account the thirty-nine days that the respondent has already served. The relatively short period seems to me makes it inappropriate to serve other than a fixed term. A short period of supervision after a non-parole period would, in the circumstances of someone who has received such enthusiastic reports from the Probation and Parole Service would constitute, in my view, a waste of time and energy, and thus a fixed term is appropriate.

58 In the sentence that I propose, I have also taken into account the fact the respondent has already spent some five and a half months of the conditional sentence which, although not full-time custody, it was nevertheless a restriction on the respondent’s liberty.

59 The sentence also reflects the fact that it might propose a full-time or fixed term rather than a period under supervision. The sentence also takes into account that a fine of $3,500.00 is being imposed to reflect the fine originally imposed by His Honour Sides QC DCJ.

60 The orders that I would propose are:

1. That the Crown appeal be upheld;
2. That the sentence including the fine imposed by Sides QC DCJ on the respondent be quashed;
3. That, taking into account the two matters on the Form 1, that the respondent be sentenced to a fixed term of one year, to commence on the date of this sentence, and to expire on 11 March 2003; and
4. That the respondent be fined $3,500.

61 BARR J: I agree with Dowd J.

oOo