Samuel Bass (a pseudonym) v The Queen (No. 2)
[2015] VSCA 252
•15 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0132
| SAMUEL BASS (a pseudonym) | Applicant |
| V | |
| THE QUEEN (No. 2) | Respondent |
---
| JUDGES: | MAXWELL P, BEACH AND KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 15 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 252 |
| JUDGMENT APPEALED FROM: | DPP v [Bass] [2014] (Unreported, County Court of Victoria, Judge Smallwood, 18 July 2014) |
---
CRIMINAL LAW – Sentence – Appeal – Drug offences – Applicant already serving sentence for other offences (‘the first offence’) – Applicant sentenced on basis of further term of 2 years 6 months’ imprisonment cumulated on first sentence – Less single non-parole period set pursuant to s 14(1) of Sentencing Act 1991 (‘the second sentence’) – Appeal against first sentence allowed and first sentence reduced – Applications for leave to appeal out of time against second sentence – Leave granted – Single non-parole period reduced.
---
| APPEARANCES: | Counsel | Solicitors | |
| No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties. | |||
MAXWELL P
BEACH JA
KAYE JA:
The applicant applies for leave to appeal out of time in respect of a sentence imposed upon him by his Honour Judge Smallwood of the County Court on 18 July 2014. As we will explain, the application arises out of a decision of this Court, involving the applicant, in another case, since the date of that sentence. The prosecution accepts that leave to appeal should be granted, and that the appeal should be allowed. It is also common ground that an adjustment ought to be made to the non-parole period fixed by Judge Smallwood. Accordingly, we have dealt with the matter ‘on the papers’, with the assistance of written submissions by each side.
The circumstances
On 9 June 2013, after a trial in the County Court, the applicant was sentenced by his Honour Judge Maidment for offences of trafficking in a commercial quantity of a drug of dependence (methylamphetamine) and possession of a drug of dependence (methylamphetamine) to a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years and 8 months’ imprisonment. Three hundred days pre-sentence detention were reckoned as served. (We shall refer to that sentence as ‘the Judge Maidment sentence’). At that stage, the applicant’s earliest eligible date for release (‘EED’) was approximately 9 May 2019.
On 18 July 2014, at the County Court, the applicant was arraigned and pleaded guilty on the one indictment to two charges of possession of a drug of dependence, one charge of being a prohibited person in possession of a firearm, and two charges of trafficking in a drug of dependence (‘the State indictment’). The applicant was also arraigned, before the same judge, and pleaded guilty to one charge of conspiring to make counterfeit money on a separate indictment (‘the Commonwealth indictment’). In addition, the applicant admitted to having breached a suspended sentence of imprisonment imposed on him on 19 September 2011, for one charge of trafficking in a drug of dependence, and two charges of possession of a drug of dependence.
On 18 July 2014, Judge Smallwood imposed the following sentences (hereafter referred to as ‘the Judge Smallwood sentence’):
Charge
Offence
Maximum
Sentence
Cumulation
Indictment 1 (State Offending)
1
Possess a drug of dependence[1]
(1.7g methylamphetamine)
1 year[2]
2 months’ imprisonment
2
Possess a drug of dependence[3]
(0.1m MDMA)
1 year[4]
2 months’ imprisonment
3
Prohibited person possess firearm[5]
(Colt .25 calibre pistol)
10 years
12 months’ imprisonment
6 months
4
Trafficking in a drug of dependence[6]
(26.8m amphetamine 80% purity)
15 years
24 months’ imprisonment
Base
5
Trafficking in a drug of dependence[7]
(1,386g pure methorphan)
15 years
24 months’ imprisonment
12 months
Indictment 2 (Commonwealth Offending)
1.
Conspiring to counterfeit money[8]
14 years
6 months’ imprisonment
Total Effective Sentence:
42 months’ imprisonment
— It was declared that 2 years of that sentence be served cumulatively on the total effective sentence of 10 years’ imprisonment imposed by Judge Maidment on 9 July 2013.
— It was further declared that the suspended sentence be wholly restored, with 6 months cumulated on the sentence imposed by Judge Maidment on 9 July 2013 (resulting in a total of 2 years and 6 months cumulation).
— That resulted in a new total effective sentence of 12 years and 6 months’ imprisonment.
Non-Parole Period:
6 years, commencing from 18 July 2014
— New single non-parole period set pursuant to s 14(1) of the Sentencing Act 1991 (Vic).
— The learned sentencing judge noted that he intended to add ‘about 14 months extra on the minimum term’[9] of 6 years, 8 months’ imprisonment imposed by Judge Maidment.
— At the date of sentence, the applicant had served 674 days in custody, resulting in the intended total non-parole period being about 7 years, 10 months.
Pre-sentence detention declared:
—
Other relevant orders: Disposal orders.
[1]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2]On the plea, the learned prosecutor expressly conceded that the possession was not for trafficking, 18 July 2014, 18:15.
[3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4]On the plea, the learned prosecutor expressly conceded that the possession was not for trafficking, 18 July 2014, 18:15.
[5]Contrary to s 5 of the Firearms Act 1996 (Vic).
[6]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[7]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[8]Contrary to s 11.5 of the Criminal Code Act 1995 (Cth) and s 6 of the Crimes (Currency) Act 1981 (Cth).
[9]Reasons for Sentence, 18 July 2014, [26].
As set out above, when sentencing the applicant on 18 July 2014, Judge Smallwood intended to cumulate on the Judge Maidment sentence of 2 years’ imprisonment for the offences he pleaded guilty to, together with six months of the restored suspended sentence. That resulted in a total effective sentence of 12 years and 6 months’ imprisonment. Pursuant to s 14(1) of the Sentencing Act 1991, his Honour set a new single non-parole period of 6 years’ imprisonment, commencing from the date of sentence, 18 July 2014.
As the judge noted in his reasons for sentence, it was intended that the applicant would serve ‘about 14 months extra on the minimum term’ imposed by Judge Maidment on 9 July 2013, thus, in effect, imposing a non-parole period of 7 years and 10 months. That analysis would have resulted in an EED of approximately July 2020.
However, it is common ground that Judge Smallwood did not appreciate that the 300 days pre-sentence detention, declared by Judge Maidment on 9 July 2013, continued to take effect, pursuant to the decision of this Court in R v Stares.[10] As a result, the applicant’s EED was to be approximately September 2019, so that the effective cumulation on the non-parole period imposed by Judge Maidment was only about four months.
[10](2002) 4 VR 314, 322 [25].
In the meantime, the sentence imposed by Judge Maidment was the subject of an appeal by the applicant. In that appeal, in Bass (a pseudonym) v The Queen,[11] the Commonwealth Director of Public Prosecutions conceded an error in the sentence imposed by his Honour. In the upshot, the Court of Appeal allowed the applicant’s sentence appeal, and reduced the head sentence from 10 years’ imprisonment to 8 years’ imprisonment.
[11][2014] VSCA 350 (‘Bass’).
The sentence imposed by Judge Smallwood, providing for cumulation of 2 years and 6 months’ imprisonment on the (adjusted) Judge Maidment sentence, continued to take effect. Thus, the effect of the decision of the Court of Appeal, in Bass, was to produce a new total effective sentence of 10 years and 6 months’ imprisonment.
Pursuant to s 14(1) of the Sentencing Act, the Court of Appeal purported to set a new single non-parole period of 6 years 8 months’ imprisonment. It declared pre-sentence detention of 837 days. As a result, the intended EED was about 9 May 2019. In purporting to set that new single non-parole period, the Court of Appeal observed:
That is notionally longer than the six years fixed by Judge Smallwood, but in reality less than the seven years and ten months that his Honour had in mind when he ordered that the non-parole period commence on the day that it did. Such pre-sentence detention as is available to the appellant, upon re-sentencing him, will restore the equilibrium.[12]
[12]Ibid [140].
By a memorandum provided to the parties from the Court of Appeal dated 22 May 2015, it was noted that the court in fact did not have power to determine a new single non-parole period, because there was no appeal against the sentence imposed by Judge Smallwood. The court invited submissions on that issue. In response, each party accepted that the court did not have the power to impose a new single non-parole period.
As a result, the only way in which the single non-parole period (fixed by Judge Smallwood on 18 July 2014) could be altered, was to appeal out of time against the sentence imposed by Judge Smallwood, on the grounds that the basis upon which his Honour determined the new single non-parole period had changed. As pointed out by the written submissions, that course was adopted by this Court in Tognolini v The Queen (No 2).[13]
[13][2012] VSCA 311.
Grounds of appeal
As a result of the foregoing, the applicant relies on the following ground of appeal:
Ground 1: the new single non-parole period imposed by the learned sentencing judge (Judge Smallwood) was in error because it was affected by a sentence that was subsequently found to be in error in Bass.
Submissions
On behalf of the applicant, it is pointed out that, when determining the new single non-parole period, pursuant to s 14(1) of the Sentencing Act, Judge Smallwood had regard to the sentence imposed by Judge Maidment. The latter sentence has now been found to be in error by this Court, and the applicant has been re-sentenced in respect of it. Accordingly, it is submitted that the new single non-parole period, imposed by Judge Smallwood, should be reduced to take into account the error in the Judge Maidment sentence, and to give effect to the intention of this Court in Bass.
In response, as we already stated, the respondent does not oppose the grant of leave to appeal out of time, in order to adjust the sentence, by fixing a new single non-parole period, in accordance with the intention of this Court in its decision in Bass. Accordingly, the respondent does not oppose a grant of leave to appeal out of time, in order to give effect to this Court’s decision in Bass.
In making that concession, counsel for the respondent, in his written submissions, nevertheless contended that the non-parole period, fixed by the Court of Appeal, should be unchanged. Counsel submitted that, in fixing the single non-parole period, Judge Smallwood was, originally, constrained by the requirements of totality. In light of the lower head sentence now imposed in Bass, it is submitted that the weight to be afforded to totality, in the sentencing synthesis, would be considerably less.
Discussion
It is clear that Judge Smallwood fixed the new non-parole period, pursuant to s 14(1) of the Sentencing Act, by reference to the sentences then imposed by Judge Maidment, as well as by himself. The head sentence imposed by Judge Maidment has now been reduced by this Court. Thus, consistent with the approach adopted by the court in Tognolini v The Queen (No 2),[14] it is appropriate that this Court reconsider the non-parole period fixed by Judge Smallwood on 18 July 2014 pursuant to s 14(1) of the Sentencing Act.
[14][2012] VSCA 311.
Notwithstanding the submissions made by the respondent, we do not consider that the issue of totality is particularly relevant to the question we must determine. Theoretically, if Judge Smallwood had known of the reduction, by this court in Bass, of the head sentence imposed by Judge Maidment, his Honour may have determined a different cumulation of the sentence, imposed by him, on Judge Maidment’s head sentence. However, the question in this case is not whether, in some way, that cumulation ought to be disturbed. Rather, the question is whether, and to what extent, the non-parole period, fixed by Judge Smallwood, should be adjusted. In determining that question, an important consideration is the maintenance of an appropriate proportionality between the single non-parole period to be fixed pursuant to s 14(1), and the head sentence, which is the result of the reduced head sentence fixed by this court in Bass together with the cumulation of 2 years and 6 months, fixed by Judge Smallwood.
Bearing those considerations in mind, we consider that it is appropriate that the non-parole period, set by Judge Smallwood, be reduced by a period of six months. Thus, the non-parole period, fixed by his Honour pursuant to s 14(1) of the Sentencing Act, should be set aside, and in lieu it be directed that there be a non-parole period of 5 years and 6 months from 18 July 2014.
Orders
Accordingly, we shall make the following orders:
(1)The applicant be granted leave to appeal out of time from the sentence imposed by his Honour Judge Smallwood dated 18 July 2014.
(2)The application for leave to appeal, and the appeal, be allowed, so that, in lieu of the non-parole period of 6 years, commencing from 18 July 2014, fixed by his Honour, there be substituted a non-parole period of 5 years and 6 months commencing from that date. The sentences imposed by his Honour are otherwise confirmed.
---
0
3
0