R v Stephen - [2003] NSWCCA 377

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Stephen [2003] NSWCCA 377

FILE NUMBER(S):
60360/03

HEARING DATE(S): Monday 1 December 2003

JUDGMENT DATE: 01/12/2003

PARTIES:
Regina
Peter Alexander Stephen

JUDGMENT OF: Wood CJ at CL Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0274

LOWER COURT JUDICIAL OFFICER: Blanch J CJ DC

COUNSEL:
F Guy (Crown)
R Hulme SC

SOLICITORS:
C. K. Smith (Crown)
S. E. O'Connor

CATCHWORDS:
CRIMINAL LAW - appeal against severity of sentence - plea of guilty to receiving - possession of cannabis taken into account on a Form 1 - whether sentencing judge erred in not setting a non-parole period.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 44, 45
Criminal Appeal Act 1912 - s 6(3)

DECISION:
1. Grant leave to appeal
2. Appeal allowed and sentence imposed in the District Court quashed
3. In lieu thereof the applicant be sentenced in relation to the count of receiving, taking into account the Form 1 offence, to imprisonment for three years to commence on 18 February 2003 and to expire on 17 February 2006, to be served by way of periodic detention
4. Specify a non-parole period of two years three months to commence on 18 February 2003 and to expire on 17 May 2005, and direct the applicant's release on parole at the expiration of the non-parole period
5. Applicant to continue to report for periodic detention as presently required, that is after he completes the current sentences which require him to be held in full-time custody until 20 January 2004.

JUDGMENT:

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

60360/03
WOOD CJ at CL
SMART AJ
Monday 1 December 2003

REGINA v STEPHEN

Judgment

WOOD CJ at CL: The applicant seeks leave to appeal from a sentence imposed upon him by Justice Blanch Chief Judge of the District Court, on 18 February 2003, for an offence of receiving to which he had pleaded guilty on the day listed for trial. A fixed term of three years imprisonment was imposed, to be served by way of periodic detention. No non-parole period was specified. A further offence of possession of cannabis was taken into account on a Form 1.
The facts upon which the applicant was sentenced were that, between 23 August 2001 and 20 September 2001, he received 11 stolen laptop and desktop computers. He sold those to Ahmed Karnib who on-sold them to John Senior, each of whom were also charged with offences connected with the receiving and/or disposal of stolen computers.
The sentencing outcomes in relation to those offenders are material, in relation to this application, since they were expressly taken into account by his Honour in determining the sentence to be imposed upon the applicant, and in determining whether or not to specify a non-parole period.
Senior was sentenced by his Honour Judge Blackmore for a single offence of receiving a quantity of laptop computers and associated items, to a fixed term of 18 months to be served by periodic detention. He had been found at the time of his arrest to be in possession of three stolen laptop computers, but admitted to having been involved, with Karnib, in the receiving and disposal of up to 40 such items over a period of four months, and to have received a profit in the order of $10,000 from those activities.
He had a minor record which did not include any dishonesty offences. He pleaded guilty and offered to give evidence against Karnib and the applicant and for this he was given a discount in order of 50 per cent. No non-parole period was fixed.
Karnib pleaded guilty to one charge of conspiring to receive laptop computers and accessories, to one charge of conspiring to dispose of such items, to one charge of receiving three laptop computers and to one charge of receiving a steam cleaner. Two charges of goods in custody were taken into account on a Form 1. He acknowledged that up to 40 stolen computers had been involved, and that he had made a profit in the order of $150 to $200 per computer.
He was sentenced by Judge Kinchington, in respect of each of the conspiracy charges, to a fixed term of three years imprisonment to be served by way of periodic detention, and to concurrent fixed terms of 18 months periodic detention for the other charges. No non-parole period was fixed.
His antecedents were confined to driving offences and he was given a discount of 40 per cent for his plea and for his offer to give evidence against the other offenders.
An appeal against the severity of that sentence was dismissed by this Court on 23 September 2003 - R v Karnib [2003] NSWCCA 271.

As the applicant had been initially arraigned on a charge of conspiracy, his plea to the charge of receiving was accepted by his Honour as having been entered:
“At the earliest opportunity that he was offered (sic) to plead to the charges".
His Honour observed in this respect that:
“It appears to me he is therefore entitled to consideration for his plea, both as an expression of contrition and for its utilitarian value. On the other hand, it may be that his decision to enter a plea was also on the basis of the fact that it was known that Karnib was prepared to give assistance to the authorities".
His Honour carefully noted the subjective circumstances of the applicant. In essence he had experienced a stable childhood until the age of 10 years followed by a period of instability when his parents separated. At the age of 18 he began to use heroin and thereafter acquired several convictions for dishonesty offences. He was on a two year s 9 bond at the time of these offences for an offence of larceny.
Since offending on this occasion it appeared that he had become settled in a relationship, had a daughter, was progressing well on methadone, had severed his ties with his former associates, and had obtained employment. He was found to have been remorseful.
It appears that his Honour was not aware of the fact that there were other matters, which involved offences which had been committed prior to the date of sentencing, and in respect of which he was subsequently sentenced, in some cases, to terms of imprisonment. I have reached the view that this is an immaterial consideration, having regard to the circumstance that he has now been sentenced appropriately for those offences, that he had not been called up for the breach of the bond, and that each of those offences predated the present sentencing exercise.
In sentencing the applicant it is clear that his Honour paid very careful attention to the question of parity, first focusing upon the respective parts played by the three offenders. His findings in this respect were as follows:
“I accept that Karnib was the facilitator in the scheme. He was seeking to purchase computers from this prisoner and on-sold them at a profit to Mr Senior. Karnib was certainly involved, as charged, in a significantly larger number of offences. Senior, on the other hand, would appear to have had a more limited involvement and the essential question in my mind is the question of parity with Karnib.”
In balancing the respective positions of the applicant and Karnib, particular attention was paid to the fact that Karnib had no relevant prior criminal history, whereas the applicant had prior convictions for offences of dishonesty for which he had been required to perform community service and, as a result of which he was halfway through a bond for an offence of larceny. His record was accordingly judged as "significantly worse" than that of Karnib.
By reason of this circumstance and the calculated nature of the applicant's offence his Honour decided that there should be no real difference in the sentences imposed upon them.
It seems that, but for the sentence imposed on Karnib, the applicant would have been sentenced to imprisonment on a full-time basis. Having reached the conclusion that equivalent sentences should be imposed, after allowance for the considerations which justified a reduction in Karnib's sentence, his Honour then determined that the matter was not one that called for any period of post release supervision, observing:
“I would prefer, I must say, for a sentence to be passed which placed him under supervision for a period of time but I do not believe I would be justified in this case in imposing any lesser period of penalty than the penalty imposed on Karnib and there is no other way which I can impose a period of supervision.”
It is the case that his Honour did not, in this passage or elsewhere, make any express reference to s 44 or to s 45 of the Crimes (Sentencing Procedure) Act 1999 as those provisions existed before their repeal and replacement, or to the fact that he had considered, but had declined to fix, a non-parole period. It is possible that, in the passage last cited, he had these provisions implicitly in mind, but if so it would have obviously been preferable for clear and express reference to be made to them.
It is this circumstance that gives rise to the present application, it being submitted that his Honour erred in not fixing a non-parole period in compliance with s 44(1) and (2) of the Act, and in failing to give reasons for not doing so, as required by s 45(2) of the Act, as those provisions then applied to this case.
These legislative requirements are important, as emerges from the decision of this Court in R v Parsons and Poore [2002] NSWCCA 296 per Smart AJ, with whom Handley JA and Sully J agreed at para 100, although, as the two sections expressly provide, non-compliance does not invalidate the sentence.
The sentencing judge in this case, it seems to me, did not follow the procedure, which it has been accepted as appropriate, in cases where an order is ultimately made that involves an alternative to full-time custody. Clear guidance is provided in this respect by the decisions in R v Wegener [1999] NSWCCA 405; R v Hanslow [2002] NSWCCA 161; R v Eagleton [2003] NSWCCA 40 and R v Schodle [2003] NSWCCA 164, which emphasise the need for a two step approach.
The sentencing judge is expected first to fix an appropriate period of imprisonment, and is then required to consider whether it should be served in circumstances other than full-time custody. Those considerations or issues are not to be telescoped, and in particular it is inappropriate to compensate for the leniency, which is involved in periodic detention, by extending the term of imprisonment which is to be served in this way.
In the present case his Honour seems not to have approached the case in that way. Having noted the sentences imposed upon the co-offenders he then determined the sentence which he should pass by reference, it would seem, solely to the question of parity.
Properly approached, his Honour should have determined what was an appropriate period of imprisonment, to reflect the applicant's objective criminality and his subjective circumstances, and then to have paid regard to the question whether the case was suitable for periodic detention. It was, at that point, that the consideration of parity would properly have entered the deliberations, in the way explained in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997)189 CLR 295, so as to ensure there was no marked disparity between the offenders, such as to give rise to a justifiable sense of grievance.
The principle of parity is, of course, concerned with offenders who have committed essentially the same crime and who are in that sense properly to be considered as co-offenders. In the present case, the offences were similar, and they broadly fell within an enterprise in which each offender was involved, however, they were involved in different ways, and as a consequence it did not involve strictly a common offence.
In those circumstances, while parity remained relevant in a general sense, so far as it involves the principle of due proportion between offenders, it did not have quite the same relevance or force as it might had each offender been sentenced for the same offence.
Particularly is that so when it is appreciated that the objective criminality of Karnib was obviously greater than that of the applicant.
For these reasons, I am of the view that, as a matter of principle, his Honour erred in the approach which was taken. It does not, however, necessarily follow that this Court should intervene, since the applicant must still persuade it that some lesser sentence involving the setting, in this case, of a non-parole period was warranted in law and should have been passed - s 6(3) Criminal Appeal Act 1912.
In my view a head sentence of three years to be served by way of periodic detention for the present offence was appropriate having regard to the calculated criminality of the applicant, his prior record and the fact that he had reoffended while subject to a bond for an offence of dishonesty. He was, however, entitled to the benefit of his plea and to the positive steps which he had taken and which appeared to his Honour to have demonstrated a commitment to his rehabilitation.
These circumstances lead me to the view that a non-parole period should have been set. That non-parole period in my view should have been one equivalent to 75 per cent of the head sentence.
I am not persuaded that special circumstances have been shown that would warrant any further reduction or variation in that ratio. Nor do I believe, having regard to the head sentence which should remain unaltered, and a weighing of the respective criminality of Karnib and Senior in their associated offences, that any legitimate sense of grievance could be occasioned, on their part, by extending to the applicant the opportunity of release on parole.
I would propose the following orders:
1. Grant leave to appeal.
2.Appeal allowed and sentence imposed in the District Court quashed.
3.In lieu thereof the applicant be sentenced in relation to the count of receiving, taking into account the Form 1 offence, to imprisonment for three years to commence on 18 February 2003 and to expire on 17 February 2006, to be served by way of periodic detention.
4. Specify a non-parole period of two years three months to commence on 18 February 2003 and to expire on 17 May 2005, and direct the applicant's release on parole at the expiration of the non-parole period.
5.Applicant to continue to report for periodic detention as presently required, that is after he completes the current sentences which require him to be held in full-time custody until 20 January 2004.
SMART AJ: I agree.
WOOD CJ at CL: The orders of the Court will therefore be as proposed.

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LAST UPDATED: 15/12/2003