R v Tolley

[2004] NSWCCA 165

CITATION:	R v Tolley [2004] NSWCCA 165 revised - 07/02/2006
HEARING DATE(S):	12/05/2004
JUDGMENT DATE:	26 May 2004
JUDGMENT OF:	Hodgson JA at 1; Levine J at 3; Howie J at 4
DECISION:	The appeal is allowed and the sentence imposed by Judge O'Reilly is quashed. The respondent is sentenced to a term of imprisonment made up of a non-parole period of one year to date from 13 August 2003 and expiring on 12 August 2004 the date upon which he is to be released to parole. The conditions of his parole are to include a condition that he places himself under the supervision of the Probation and Parole Service. The balance of the term is to be one year to date from 13 August 2004 and to expire on 12 August 2005.
CATCHWORDS:	Criminal Law and Procedure - Sentencing - Crown Appeal - suspended sentence - manifestly inadequate - trial judge erred in failing to take into account seriousness of firearms offences and in having regard to parity with co-offender on Form 1 matter - discussion as to the effects of revocation of bond under s 12.
LEGISLATION CITED:	Crimes Act 1900 - s 350 Crimes (Sentencing Procedure) Act 1999 - ss 12, 21A, 37, 44, 45, 46, 47, 49, 50 Sentencing Act - s 99 Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 24(1) Criminal Procedure Act 1986 - Table 1 Firearms Act 1996 - ss 3, 36(1)
CASES CITED:	R v Brady (1998) ABCA 7 R v Finnie (No.2) [2004] NSWCCA 150 R v Hunt [2002] NSWCCA 266 R v Gamgee (2001) 51 NSWLR 707 R v Turkmani [2002] NSWCCA 388 R v Haydon (NSWCCA, unreported, 11 November 1990) R v Cromarty [2004] NSWCCA 54 R v Thurgar (1999) 51 A Crim R 109 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 R v Hodges (NSWCCA, unreported, 20 August 1997)
PARTIES :	Regina v Stuart William Tolley
FILE NUMBER(S):	CCA 60536/03
COUNSEL:	D. Arnott - Crown R.K.M. Rasmussen with D. Rayment - Respondent
SOLICITORS:	S, Kavanagh - Crown S. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1246
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

60536/03

HODGSON JA
LEVINE J
HOWIE J

WEDNESDAY 26 May 2004

R v STUART WILLIAM TOLLEY

Judgment

1 HODGSON JA: I agree with Howie J.

2 I would add that, in my opinion, the consequences of giving effect to a literal interpretation of s 47 of the Crimes (Sentencing Procedure) Act in the case of revocation of a s 12 bond are so anomalous that the following approach is preferable. Upon revocation of a s 12 bond, s 99 requires the Court to apply s 47, and subject to s 47 and any other relevant part of Pt. IV being complied with, the sentence “takes effect”. That means that, for the first time, there is an effectual imposition of a sentence; and accordingly, in that case, “the day on which the sentence is imposed” in s 47 should be taken as the day on which the sentence takes effect pursuant to s 99(1)(c)(iii).

3 LEVINE J: I agree with the orders proposed by Justice Howie and the reasons therefor.

Background

4 HOWIE J: This is an appeal by the Crown under s 5D of the Criminal Appeal Act. On 25 November 2003 the respondent pleaded guilty in the District Court to an indictment containing a charge that on 12 August 2003 he knowingly took part in the manufacture of a prohibited drug. This is an offence contrary to s 24(1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years. The respondent came before Judge O’Reilly on 28 November 2003 for sentence and asked his Honour to take into account two offences on a Form 1 under the provisions of the Criminal Procedure Act. These offences were, firstly, a charge of knowingly taking part in the manufacture of a prohibited drug, that offence having occurred between 23 July and 23 October 2001, and, secondly, a charge of being in possession of two unregistered firearms, contrary to s 36(1) of the Firearms Act, that offence occurring on 23 October 2001.

5 Judge O’Reilly sentenced the respondent to imprisonment for 2 years and suspended that sentence upon the respondent entering into a bond for two years to be of good behaviour in accordance with s 12 of the Crimes (Sentencing Procedure) Act. The Crown asserts that the sentence was manifestly inadequate and an appeal by the Director of Public Prosecutions was lodged on 17 December 2003 and served on the respondent about a week later.

6 On 12 August 2003 police went to a shed on premises where the respondent lived with his parents at Llandilo in Sydney’s western suburbs. The respondent was found in the presence of five other persons and with a number of items indicative of the fact that methylamphetamine was being manufactured in those premises. The items located by police included laboratory glassware, a water-recycling system, a drum and a burner. There were 246 pseudoephedrine tablets derived from non-prescription medication such as Codryl and Telfast.

7 The first matter contained on the Form 1 arose on 23 October 2001 when police executed a search warrant on the same premises at Llandilo and found items involved in the manufacture of methylamphetamine and approximately 77 grams of the successfully produced drug. The respondent was arrested. Over 12 months later, on 6 November 2002, he was arraigned in the Penrith District Court for the first offence set out on the Form 1 and pleaded not guilty. The matter was set down for trial on 3 March 2003 but the hearing date was later vacated. The trial was ultimately listed on 24 November 2003 but on that date the respondent indicated that he was prepared to plead guilty to the 2003 offence, which at that time was before the Local Court. He also indicated a preparedness to have the October 2001 matter taken into account on a Form 1.

8 The second offence on the Form 1 arose from the search of the premises on 23 October 2001 and related to the finding by police of two rifles in a locked metal safe at the back of a shed.

9 In respect of both the matter on the indictment and the first matter on the Form 1, the Crown’s allegation was that the respondent was knowingly taking part in the manufacture of methylamphetamine in that he permitted the premises to be used for that purpose.

10 The respondent was arrested for the offence on the indictment on 12 August 2003 and remained in custody until he was sentenced by Judge O’Reilly on 28 November 2003.

11 The respondent was born on 13 September 1967 and was thus aged 36 years when he was sentenced. He had three children living with him; one aged 8 years from a former marriage, and two younger children one born while he was in custody. He had a criminal record for what were relatively minor matters dealt with in the Local Court. In October 1994 he was fined $400 for possession of a prohibited drug. In December 2002 he was fined $500 on a charge of goods in custody. In August 2003 he was before the Local Court on various driving matters for which he was fined and disqualified from driving.

The sentencing proceedings

12 The respondent gave evidence before Judge O’Reilly. He said that he had been living at home on the property of his parents since leaving school in 1984. The property contained a house and a number of sheds. He had worked in various forms of manual employment until he bought a bobcat and tipper in 1992. He then conducted a business as an excavator until he was forced to sell the equipment in 2000 because of difficulties securing work and looking after his son.

13 He explained his involvement in the offences of October 2001 in this way. He met a man named Thorning in 1994 while he was doing contract work. At some stage Thorning told the respondent that he was forced to leave his place of abode and to take up residence in a caravan. The respondent, with his parent’s consent, allowed Thorning to stay on his parent’s property. While Thorning was living there, the respondent became suspicious that he and the respondent’s then girl friend were involved in making amphetamine on the property. Thorning denied the allegation when the respondent put it to him. During his evidence the respondent was asked why he did not report the matter to police, and he answered:

I was not a hundred per cent sure and I was – like Brad was a good friend and Jade was my girlfriend at the time and you know just trying to help her in the best way as I could but in hindsight I know now I definitely should’ve went to the police or had something done about it for sure.

14 The respondent was asked about his involvement in the offence in August 2003 and he said,

I just said I’m deeply regretful for letting – allowing it to happen again. At the time I was in a position where I was – threats were made against me and I didn’t really want to find out if they were going to be carried out and in hindsight I know now that I should’ve rang the police, shouldn’t have allowed it to happen. I don’t know why I allowed it to happen. It was a silly thing to do.

He said that the threats were of “bodily harm type thing and towards my family”.

15 The respondent was asked about the effect of being in custody and he said,

It’s made me realise that what I did was totally wrong and I’d never do that again and it just wasn’t worth it. There’s too much to be said that – the beauty of freedom and to be able to live your life normally and to be with your son, maintain a normal life, not to be locked up every day at 3 o’clock in the afternoon and not be able to see your son. Not to, you know, be there if he needs you, that sort of thing.

16 He gave an account of his possession of the two firearms. He said that his father had an interest in sport shooting and he owned pistols and rifles that were kept in a safe inside the family home. The respondent received one of the rifles to which the charge related from a friend during an amnesty period. The weapon was unable to be fired because the barrel was “no good at all”. The other rifle, a .22, he had for about 6 months before his arrest. He had intended to do it up and then give it to his father to have registered in his name. However, he later changed his mind and never got round to handing in the weapon.

17 The respondent’s father, a lecturer at the Catholic University North Sydney, gave evidence. He was a member of a pistol-shooting club and experienced with firearms. He said that one of the weapons found in the respondent’s possession would have mal-functioned, but that the .22 “didn’t seem to be too bad”. He confirmed that the respondent had a position on offer to him when he was released from custody.

18 At the end of the addresses there was an exchange between the sentencing judge and the prosecutor in which the sentencing judge sought assistance as to whether he would fall into error if, in order to “give some effect to the parity argument”, he dealt with the matter by a two year suspended sentence. The prosecutor was uncertain and wished to seek some guidance during the lunch break. After the adjournment the prosecutor further addressed, and it is clear that he did not accept that a suspended sentence was within the sentencing judge’s discretion.

19 His Honour is recorded as saying to defence counsel:

Well I think the real issue is whether it should be two years s 12 or two years full time with a non-parole period of one year. I think that’s the decision I’ve got to make. Most of the sentencing is in the three to four year range.

The reference to “two years s 12” was clearly a reference to an order suspending a sentence of two years.

20 The reference to the “parity argument” was a reference to the sentencing of Thorning by another District Court Judge for the matter on the Form 1. His Honour in his remarks on sentence referred to this issue as follows:

Now Bradley Jones Thorning was sentenced by Judge Sorby in respect of the October 2001 matter. Judge Sorby gave him a s 9 bond and I have got to have some regard to the principles of parity. Would the prisoner suffer from a legitimate [sense] of grievance if he received punishment of a higher degree? Well I suppose there is one point of difference immediately apparent and that is that Thorning had only the October 2001 matter to worry about whereas this prisoner has both, the 2001 matter and the August 2003 matter. Another difficulty about it is that Judge Sorby – first of all there was the slip of the tongue as to the legislation, he called it s 24(1) of the Crimes Act but that is plainly a simple error. But then he said it carried a maximum penalty of five years, it carries a maximum of 15 years. Indeed a maximum of five years if one looks at the ordinary sections of the Crimes Act; five years is almost an invitation to a bond. I am thinking of things such as common assault and assault occasioning actual bodily harm.

The other thing about it is that Thorning before Judge Sorby had a record which included s 558 bonds for six matters during 1999 so they were still in force and they included significant items such as possess unauthorised firearm/pistol together with possess prohibited drug (2 counts).

21 Judge O’Reilly sentenced the respondent to imprisonment for 2 years but suspended execution of the sentence on condition that the respondent enter into a bond, the conditions of which included that he place himself under the supervision of the probation and parole service. The prosecutor asked his Honour whether he had indicated that the term of the sentence was to begin on 12 August 2003, the date the respondent went into custody. His Honour replied:

No we don’t do that unless and until there is a breach and we apportion the non parole periods and that sort of thing. If it comes to the worst he would certainly get credit for the time already served.


With respect, that was not an entirely correct statement of the law.

Suspended sentences

22 A suspended sentence has often been described as a “sword of Damocles” hanging by a thread over the head of the offender while the period of the bond is current. However, in R v Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]

This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equated to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the 'sword' shrinks until it finally becomes a butter knife.

23 Section 12, as it applied to the respondent’s proceedings, was as follows.

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.
(3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence.
(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

24 Section 12(3) states, in effect, that Part 4 of the Act does not apply to a sentence that is being suspended, “except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence”. Therefore, s 44, (court to set non-parole period), s 45 (court may decline to fix a non-parole period), s 46 (court not to set non-parole period for sentence of 6 months), and s 49 (restriction on term of sentence) do apply. They are all found in Part 4 of the Act and are all concerned with “setting the non-parole period and the balance of the term of the sentence”. For offences committed after April 2003, Division 1A of Part 4 (standard non-parole periods) also applies if relevant.

25 To the extent that Judge O’Reilly believed that the non-parole period was determined upon revocation of the bond, he was, with respect, not correct. The sentence imposed by him was erroneous to the extent that his Honour failed either to specify the non-parole period or to give reasons for declining to do so. Of course that error does not mean that the Crown appeal should succeed. The failure to sentence in accordance with those provisions of Part 4 that did apply did not invalidate the sentence; ss 44(4) and 45(4). The sentencing proceedings could be re-opened under s 43 of the Act, because the sentence imposed is “a penalty that is contrary to law”. See R v Finnie (No 2) [2004] NSWCCA 150.

26 The provisions of the Act that do not apply at the stage when a sentence is being suspended include s 47 (commencement of sentence), s 48 (information about release date), and s 50 (making of parole orders by court). They are all found in Part 4 but they do not concern “the setting of the non-parole period and the balance of the term of the sentence”. The fact that s 47 does not apply is fundamental because it means that the court, which is suspending a sentence, does not nominate the commencement date of the sentence (because s 47(2) does not apply) nor does the sentence automatically commence on the date that it was imposed (because s 47(1) has no effect).

27 Insofar as Judge O’Reilly was of the view that, if “the worst” happened and the bond was revoked, the period served in custody could be taken into account at that time, his Honour was, with respect, appears to be correct. The consequences of the revocation of a good behaviour bond are set out in s 99 of the Sentencing Act. The section provides:

(1) If a court revokes a good behaviour bond:
(a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or
(b) in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or
(c) in the case of a bond referred to in section 12:
(i) the order under section 12 (1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and
(ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the non-parole period and the balance of the term of the sentence, and
(iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect.


(2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates (disregarding any part that has already been served) is to be served by way of periodic detention or home detention.

(3) An order made under subsection (2) is taken to be a periodic detention order made under section 6 or a home detention order made under section 7, as the case requires.

(4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction.

(5) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.

28 The consequences of the revocation of the bond, so far as the respondent was concerned, would be:

(a) the order suspending the sentence would cease to have effect so that execution of the sentence would be revived;

(b) those provisions in Part 4 of the Act generally concerned with the imposition of a sentence of imprisonment, but not setting the term of the sentence or the non-parole period, would be applied;

(c) the sentence would take effect;

(d) if appropriate, the court could order that the sentence (disregarding the period already served) be served by way of periodic detention or home detention.

29 It should be noted that the offender is neither sentenced nor resentenced for the offence to which the bond relates, as would be the case where s 99(1)(a) or (1)(b) applied. Further, ss 99(4) and (5) do not apply in the case of a revocation of a bond that was entered under s 12 of the Act. In so far as the decision of this Court in R v Hunt [2002] NSWCCA 266 suggests that there can be an appeal from an order made on a revocation of a bond under s 12, or that the task following the revocation of such a bond entails resentencing the offender, it seems to me, with respect, to be not in accordance with the provisions of s 99(1)(c).

30 The only order that the court is authorised by s 99 to make on revocation of the bond is that the sentence, which has already been imposed, is to be served by way of periodic or home detention. The only other matters that the court has to consider are those provisions of Part 4 of the Act that may then be applicable. This is in effect the reverse of the situation that pertained when the sentence was being suspended.

31 Therefore, in the case of the respondent, had the “worst” occurred and the bond was revoked, s 47 of the Act applied. That section relevantly provides as follows:

(1) A sentence of imprisonment commences:
(a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or
(b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence.

(2) A court may direct that a sentence of imprisonment:
(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or
(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.


(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.

(4)……………………

(5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:
(a) a non-parole period has been set for that other sentence, and
(b) the non-parole period for that other sentence has expired, and
(c) the offender is still in custody under that other sentence.

(6)………………….

32 It is at this stage that some considerable uncertainty arises, at least in my mind, as to how s 99 operates. Section 47(1) makes it clear that, as a general rule, a sentence commences on the date it is imposed with two stated exceptions: where an order is made that the sentence be served by way of periodic detention and where a sentence is stayed because the offender is being assessed for home detention. However, a court has power under 47(2) to make some other order as to the commencement of the sentence so that it commences either before or after the date upon which it was imposed.

33 When the bond under s 12 is revoked, s 47(1) applies to the sentence. If no other order were made, and on a literal application of the section, it would seem that the sentence commences on the date of its original imposition. The sentence would take effect such that it would be taken to have run during the period on which the offender was under the bond. The only part of the sentence still to be served after revocation of the bond would be the outstanding balance on the date of the revocation. In other words, the sentence would be taken to have been executed when it was imposed.

34 Although this would seem to be the operation of the provision according to the literal meaning of s 47(1), it leads to some curious, and seemingly unintended, consequences. For example, it would mean that s 100 could have no practical application in respect of a bond entered under s 12. Section 100 is as follows:

Action may be taken under this Part in relation to a good behaviour bond even if the term of the bond has expired, but in respect only of matters arising during the term of the bond.

35 In any case where a bond under s 12 has expired, but is revoked for a breach occurring within its term, revocation would be a meaningless exercise if, upon revocation, the suspended sentence commenced to run from the date of its imposition. Because by the operation of s 12(1)(b) the term of the bond can be no longer than the term of the sentence, and if, by the application of s 47(1), they both commence from the same date once the bond is revoked, the term must be taken to have expired when the bond did. Yet it is quite conceivable that a serious breach could occur during the period of the bond but revocation not take place before the bond expires. A simple example is where the breach is the commission of another offence but conviction for that offence does not occur until after the bond expires.

36 There are other consequences arising from the operation of s 47(1) on revocation that raise in my mind the question whether it could really have been intended that s 47(1) would operate according to its literal terms on revocation of a bond under s 12. Section 99(1)(c)(iii) states:

subject to the requirements of Part 4 having been complied with, the sentence takes effect.

As I have noted, those provisions of Part 4 that must be complied with include the making of a parole order for the release of the prisoner to parole. It seems to me to be absurd to require a court to go through the farce of solemnly making such an order and providing parole conditions, when, by the application of s 47(1), the court may find that the offender has in effect been on parole for a substantial period of the sentence prior to making the order releasing him and is just about to complete his parole period.

37 That situation should be compared with a case where, as it just so happened, the offender was serving an unrelated sentence at the time of the revocation. In such a case the court would have power, quite serendipitously, to require that the full sentence be served by postponing its commencement under s 47(2) to make it cumulative upon the sentence being served. Yet no appeal lies from that decision.

38 I find it difficult to accept that it was intended that the consequences of a revocation of a bond under s 12 could have such widely disparate results depending upon the particular circumstances in which the offender finds himself at the time of revocation.

39 These anomalies, oddities and inconsistencies would be avoided if, in the case of a revocation of a bond under s 12 “the day on which the sentence is imposed” in s 47(1) is taken to be when the sentence takes effect pursuant to s 99(1)(c)(iii). If the sentence were to commence, subject to any order under s 47(2), on the date of revocation, that seems to me to produce a more sensible reading of s 99(1)(c)(iii) and the requirement that the court apply those provisions in Part 4 that were not applicable at the time the sentence was imposed. It also gives some meaningful work for s 100 to do in cases where the bond was entered into under s 12. By applying s 47(2) and backdating the sentence the court could take into account any period spent by the offender in custody prior to the date of sentence. This approach to the effect of a revocation of a bond under s 12 seems to be consistent with the view of the provisions adopted at least by Sully J in R v Gamgee (2001) 51 NSWLR 707.

40 With respect, I find s 99(2) to be incomprehensible both as to its meaning and the policy behind it, regardless of what interpretation is given to s 47(1) and s 99(1)(c). This section permits a court, when revoking a bond, to order that “the sentence of imprisonment to which the bond relates (disregarding any part that has already served) to be served by way of periodic detention or home detention”. It is the words that I have underlined to which I find it almost impossible to give a sensible meaning. What is the part of a suspended sentence “that has already been served”? And why is a court being required, for reasons unconnected with the conduct of the offender, to disregard a period of a sentence that has already been served?

41 If s 47(1) applies, so that on revocation the sentence is taken to have commenced on the date it was imposed, then the words could be referring to that part of the sentence that has notionally already been served, being the period when the offender was subject to the bond and prior to revocation. To that extent the underlined words support the literal application of s 47(1). But if that is the case, then it appears that it was the intention of the legislator that the balance of the sentence should be served if it is to be spent in full time custody or on parole, but that the whole of the term of the suspended sentence is to be served if the court is going to make an order for periodic or home detention. I find it difficult to understand why that should be so, and it seems to me it could be unfair to order that an offender serve the whole of the sentence by periodic detention or home detention where, for example, there is but a month left to run of a two year sentence and the offender would be on parole during that period. Again it should be noted there would be no appeal from such an order and yet the consequences of a revocation of the bond can be so markedly different.

42 If, contrary to the literal words in s 47(1), the sentence commences on the date of revocation, then what part of the sentence has already been served? It could only sensibly be a reference to the period in respect of which the sentence has been backdated under s 47(2) because, for example, the offender was in custody before the suspended sentence was imposed. But again I have difficulty with the notion that a court should be directed not to take into account a period during which a person was serving a sentence when ordering that the sentence be served by way of periodic detention or home detention.

43 I am prepared to admit that, in the absence of full argument by the parties on these matters, I may be overlooking some provision or policy that makes the operation of suspended sentences rational, consistent and comprehensible. But I am also prepared to admit defeat and move on. I would simply pause to express my exasperation that it appears to be so difficult to find in the legislation the answer to what is a fundamental question and one that should be capable of an immediate and simple answer by reference to a single provision of the Act. Does the revocation of a bond under s 12 reactivate the whole of the suspended sentence so that, subject to s 47(2), it commences from the date of revocation or does it merely reactivate that part of the sentence that is the equivalent to the unexpired period of the bond? The answer to that question will reveal whether a suspended sentence in this State is a sword or a butter knife.

44 I will now turn to the question of whether the sentence was manifestly inadequate and, if it was, whether the Court should intervene.

The Crown’s arguments

45 Generally the Crown submission is that the term of the sentence imposed, and, in particular, because it was suspended, was inadequate to denounce the respondent’s criminal conduct and reflect both general and specific deterrence. The Crown in effect submits that his Honour had too much regard to, what he considered to be, the minor role of the respondent in permitting the premises to be used for manufacturing by others. The Crown relies upon the statement of Buddin J in R v Turkmani [2002] NSWCCA 388 recognising that even minor participants are essential for the success of an enterprise to manufacture drugs and that “appropriately salutary sentences be imposed upon them”.

46 The Crown complains that His Honour gave too much weight to the respondent’s supposed rehabilitation in accepting his evidence that he would not offend again, in light of the fact that only three months earlier he had committed the offence while on bail for the very same criminal conduct committed almost two years earlier. Further, it was contended that the sentencing judge was in error in taking into account that the respondent was “a man in general terms of good character” in the light of the fact that he had committed the two offences of being involved in the manufacture of drugs and the statement of Lee CJ at CL in R v Haydon (NSWCCA, unreported, 11 November 1990) as to the seriousness of manufacturing drugs even by persons of otherwise good character.

47 These are grounds that merely amplify the complaint that the sentence was manifestly inadequate. The resolution of these particular complaints depends upon a determination of whether the sentence was outside the legitimate range of his Honour’s discretion rather than by determining whether he gave too much weight or too little weight to some relevant fact or sentencing principle. Manifest inadequacy does not depend on the identification of error, and very often the error will simply be that the sentence is outside the legitimate sentencing range having regard to the facts and the importance of particular aspects of punishment. However, there are some specific complaints that should be addressed.

The significance of the firearms offences

48 It was submitted by the Crown that his Honour was too dismissive of the firearms offences and generally paid too little regard to the second offence on the Form 1. In respect of the charge of being in possession of unregistered firearms, Judge O’Reilly said:

Perhaps I could say at this point in time that the rifles do not play a major role in this sentencing exercise at all. I am satisfied that one of them a Martini his father says it was all unusable. The barrel was badly corroded so it does (sic) not come into operation. The other was only a simple .22 rifle. And I accept what the prisoner says that he had it in mind, as it were, re-conditioning the 0.22. Alternatively, surrendering both of them under the amnesty and he simply had not got round to it. But I do not treat them as being terribly relevant. It is not part of a drug manufacturer’s regime to have a rifle. And I will take them into account in the sentence I impose.

There is in my opinion merit in the Crown’s complaint and this passage indicates that his Honour gave too little weight to the charge under s 36(1) of the Firearms Act and, as a result, his sentencing discretion miscarried.

49 I do not quite understand what his Honour meant to convey by stating that one of the weapons was “only a simple .22 rifle”. His Honour might have been seeking to distinguish the weapon from a “prohibited firearm” or “prohibited pistol” as defined in the Firearms Act, in order to emphasise that the offence charged was less serious than would have been the case if such a weapon had been involved. With respect, if that was the point his Honour was trying to make, it would have been more appropriate to indicate the different applicable maximum penalties involved rather than to make a remark which seems to suggest, at least to my mind, that his Honour thought that any offence relating to a .22 rifle was not a serious one.

50 Further, his Honour seems to have thought that the offence relating to the firearms was not “terribly relevant” to the sentencing exercise in that “it is not part of a drug manufacturer’s regime to have a rifle”. Again, with respect, I do not understand that remark. If it is to suggest that there is common or judicial knowledge that person’s involved in drug manufacturing do not use rifles, I doubt the validity of the statement. But in any event the offence was a serious one even if his Honour was of the view that the possession of the rifle was unrelated to the activity in which the respondent was involved at the time the weapons were located.

51 In R v Cromarty [2004] NSWCCA 54, Kirby J emphasised the importance of the legislative policy behind the provisions of the Firearms Act as set out in s 3 of the Act. Kirby J pointed out that the provision concerned with the registration of firearms was an important tool in the legislature’s attempt to impose strict control upon the possession of weapons within the community and a failure to register a weapon, even if the offender was entitled to be in possession of it, was not to be treated lightly.

52 It seems to me, with respect, that his Honour completely misunderstood the significance of the firearms offences and the weight to be attributed to them in sentencing the respondent. Although his Honour said that he was taking them into account in the sentence he was to impose, it is difficult to see how he could have done so in any meaningful way, having expressed the opinion that they were not “terribly relevant”. The fact that the respondent was going to recondition the .22 rifle but changed his mind and never got around to surrendering either of them was no excuse and little by way of mitigation. The respondent clearly knew the law in relation to the possession of firearms and simply chose to ignore it. Nor was it a mitigating factor that the respondent was not going to use the rifle for any criminal purpose. If such had been the case it would have been an aggravating feature and would probably have resulted in a more serious offence.

53 Mr Rasmussen, who appeared for the respondent and made very detailed and helpful submissions on his client’s behalf, relied upon the statements of Gleeson CJ in R v Thurgar (1999) 51 A Crim R 109 which emphasised the importance of the use to be made of an unlicensed firearm when determining the seriousness of the offence of being in possession of it. That observation must now be considered in the light of the very substantial legislative changes that have been made to offences concerned with firearms since 1999. Nothing said in that case should be taken as any warrant for not treating a firearms offence seriously notwithstanding that no criminal use is to be made of the weapon. The courts must seek to implement the policy of the existing legislation and that is to control the possession and use of firearms in the community by honest citizens, and not simply to disarm the criminally minded.

54 In my opinion this ground is made out and the sentencing exercise miscarried.

The “parity argument”

55 The Crown relies upon the importance given by his Honour to the “parity argument” in determining to suspend the sentence as being an error. It is contended, rightly in my opinion, that there was in truth no issue of parity that needed to be addressed by his Honour.

56 As I have already indicated, Judge O’Reilly was troubled by the sentence imposed on Thorning by Judge Sorby. It will be recalled that Thorning was a co-offender in relation to the first offence relating to the manufacture of methylamphetamine in October 2001 and not in the offence occurring in August 2003. It is highly significant that the respondent was being sentenced, not for the 2001 offence but the 2003 offence. The earlier offence was being taken into account on the Form 1. As was made clear in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146, the court does not sentence the offender for a matter taken into account on a Form 1. A charge on the Form 1, however, may increase the sentence otherwise appropriate for the principal offence by the court giving greater weight to personal deterrence and retribution than it would have done in the absence of the Form 1.

57 Bearing these matters in mind, I have difficulty in understanding how it might be thought that the respondent could have a justifiable sense of grievance as a result of any disparity between the sentence imposed upon him and that imposed upon Thorning. The two were only in a highly technical sense co-offenders for the purpose of the application of any sentencing principle, because they were not being sentenced either for the same offence or even the same act of criminality. I do not comprehend how the respondent could conceivably have a justifiable sense of grievance arising from the sentence imposed upon Thorning without knowing the amount by which the sentence imposed by Judge O’Reilly for the 2003 offence was increased having regard only to the fact that the 2001 offence was taken into account on the Form 1. Indeed, as the Chief Justice indicated in the Attorney General’s Application (No 1 of 2002) at [44];

44. The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences……..

58 Another matter that Judge O’Reilly thought had some significance was the supposed slip made by Judge Sorby in sentencing Thorning as if the offence were one under the Crimes Act, the maximum penalty for which was imprisonment for 5 years. Having regard to the fact that his Honour was delivering an ex tempore judgment and seeking to make a point in favour of the respondent, the observation that an “ordinary offence” falling within that category “is almost an invitation to a bond” can be disregarded. It is so unsound as a statement of sentencing policy that His Honour could not have meant that he should be taken literally.

59 The fact that Judge Sorby may have been under a misapprehension as to the nature of the offence or the appropriate maximum sentence when dealing with Thorning was in my view irrelevant to the sentencing of the respondent even if parity was an issue. The principle of parity is not concerned with overcoming any perceived injustice held by an offender as to his treatment when compared with that of a co-offender. For example, there would be no issue of parity arising if Thorning had never been charged or had been acquitted. In my view the issue of parity does not arise simply because of some error made by another sentencing court when sentencing a co-offender. I do not believe that the decision of this Court in R v Hodges (NSWCCA, unreported, 20 August 1997), a decision that in my view should be restricted to its own very peculiar facts, suggests otherwise.

60 In any event, it is obvious from the sentencing remarks of Judge Sorby that Thorning was being sentenced as an accessory after the fact to the commission of the offence by the respondent. The allegation was that Thorning was assisting the respondent to avoid detection by storing items connected with his, that is the respondent’s, involvement in the manufacture of methylamphetamine. Thorning was thus being sentenced in accordance with s 350 of the Crimes Act, which prescribed the maximum penalty for his offence as being imprisonment for five years. All of this is clear from Judge Sorby’s sentencing remarks and there was no error in his approach to the sentencing of Thorning. An issue of parity does not arise where co-offenders are sentenced for different offences and on different factual bases.

61 It is clear that Judge O’Reilly decided to suspend the sentence on the basis of a parity issue that simply had no foundation either in fact or law. His Honour said in his remarks on sentence:

Before I gave full consideration to the parity point it seemed to me that an appropriate result here would be a full-time custody [sentence] with a non-parole period of one year backdated to 12 August 2003 and a full term of two years. But then having thought about the parity side of it, it seemed to me that he may well have been entitled to some legitimate sense of grievance if, having already served three and a half months full-time custody he is doomed to continue that for another eight or nine months or so.

62 In my view the Crown has made good its challenge and the sentencing discretion completely miscarried. Subject to the question of the exercise of

the court’s discretion whether to intervene, the appeal should be allowed.

Should the Court intervene?

63 In the event that the Court found error and was called upon to exercise its discretion, an affidavit was received from the respondent’s father. It states that the respondent is in full-time employment. When not working, the respondent spends his spare time with his son. It seems that he is no longer in the relationship that was current at the time of sentencing and nothing is said of the other two children. The respondent has apparently been attending on the Probation and Parole Service and carried out its requirements. His father believes that the respondent has received a “salutary insight into his self-destructive lifestyle that he began leading which he now appears to have left behind him”. He also believes that his son is contrite and that his experience so far with the Probation and Parole Service has “demonstratively rehabilitated him”.

64 The offence for which the respondent was to be sentenced was a serious one in its own right but severely aggravated by the fact that it was committed on bail while he was awaiting trial for another similar offence. His explanations or excuses for his conduct are to my mind unconvincing and inconsistent with true remorse and contrition. In respect of the first matter on the Form 1 his explanation is incompatible with his acceptance of guilt and is incredible. His account of the second matter is that there were some vague threats made by persons involved, an explanation given for the first time in evidence before his Honour. Although the Crown accepted that his participation was in permitting the premises to be used for the manufacture, that is not a matter which itself suggests that his criminality was minimal.

65 It was submitted that these were offences that could have been dealt with in the Local Court. That contention seems to me to be at odds with the provisions of Table 1 of the Criminal Procedure Act, as a magistrate could not have been satisfied that the offence involved less than an indictable quantity of the drug. But in any event the fact that the offence was committed on bail made it appropriate that it be dealt with in the District Court.

66 Unfortunately the respondent received such undue leniency that he was permitted to be at large, albeit conditionally, after having served only 3½ months in custody for a serious offence committed while on bail for a like offence and having two serious matters taken into account on a Form 1. On its face the outcome is so inadequate that it must be redressed even at the cost of returning the respondent to custody. It is distasteful in the extreme for any court to return a person to custody where that person justifiably believed that he had served the custodial part of his sentence subject to him being of good behaviour. But there is a public expectation that persons who commit serious offences such as the offender did and while on conditional liberty should be appropriately punished. That expectation was not fulfilled in the present case because of a serious miscarriage of a court’s sentencing discretion.

67 In some cases the object of a Crown appeal will be attained by a recognition by this Court of the sentencing error and a restatement of the principles that should have been applied. In such a case it may be unnecessary to increase the punishment inflicted upon the particular respondent in order to redress the error of the sentencing court, particularly where the respondent has been released or is about to be released into the community. This, in my view, is not such a case.

68 In my opinion, having regard to all the mitigating and aggravating factors set out in s 21A of the Act, the least sentence that can now be imposed upon the respondent is that chosen by the sentencing judge before he took into account the “parity argument”: a sentence with a total term of imprisonment for 2 years and a non-parole period of 1 year. That sentence is itself verging on the inadequate given the total criminality before the sentencing judge, and, in particular, having regard to the non-parole period fixed. However, in recognition of the fact that the respondent has been at liberty in the community under the suspended sentence and subject to the bond, I would not vary the non-parole period and I would date the sentence from when he was originally taken into custody for the offence.

69 There are special circumstances in that the respondent is being returned to custody having been under supervision since release in November and because of double jeopardy. The non-parole period has been reduced because any longer period in custody might jeopardise the rehabilitation that has taken place during the period he has been at large.

70 I propose that the appeal be allowed and the sentence imposed by Judge O’Reilly quashed. The respondent should be sentenced to a term of imprisonment made up of a non-parole period of one year to date from 13 August 2003 and expiring on 12 August 2004 the date upon which he is to be released to parole. The conditions of his parole order are to include a condition that he places himself under the supervision of the Probation and Parole Service. The balance of the term is to be one year to date from 13 August 2004 and to expire on 12 August 2005. The respondent should be returned to custody forthwith.

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Last Modified: 07/18/2007