Smith v The Queen
[2012] VSCA 133
•10 November 2011 and 21 June 2012 (addendum)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0366
| DAMIEN SMITH | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
and
S APCR 2010 0381
| DAVID DROSTE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and ROSS AJA (to 10 November 2011) and CURTAIN AJA (from 10 November 2011) | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 10 November 2011 and 4 April 2012 | |
| DATE OF JUDGMENT | 10 November 2011 and 21 June 2012 (addendum) | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 133 | |
| JUDGMENT APPEALED FROM | DPP (Vic) v Smith (Unreported, County Court of Victoria, Judge Parsons, 28 September 2010 and 5 October 2010) | |
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CRIMINAL LAW – Sentence – Appellants severely assaulted 43-year-old male victim – Appellants each pleaded guilty to one charge of intentionally causing serious injury – Smith sentenced to nine years’ imprisonment with non-parole period of seven years – Droste initially sentenced to nine years’ imprisonment with non-parole period of seven years and six months but re-sentenced upon sentencing judge being informed that offending had resulted in cancellation of his parole – Droste’s non-parole period reduced to seven years – Whether sentences were manifestly excessive – Whether sentencing judge erred in only reducing Droste’s non-parole period when re-exercising sentencing discretion – Whether sentencing judge erroneously reduced weight given to appellants’ pleas of guilty due to strength of Crown case – Whether lack of disparity between sentences imposed on appellants infringed principle of parity – Appeal allowed – Smith re-sentenced to seven years’ imprisonment with non-parole period of five years – Droste re-sentenced to six years and six months’ imprisonment with non-parole period of four years and six months – R v Pajic (2009) 23 VR 527 – Scerri v The Queen (2010) 206 A Crim R 1 – Sentencing Act 1991 s 6AAA.
CRIMINAL LAW – Sentence – Addendum – Court informed subsequent to judgment being delivered that Droste had been sentenced in Magistrates’ Court on 4 February 2011 – Magistrate had fixed new single non-parole period pursuant to s 14 of Sentencing Act 1991 – Non-parole period related to Droste’s County Court sentence and sentence imposed on him by Magistrate – Whether s 14 operated to require this Court to fix new single non-parole period – Whether sentence imposed by this Court following successful appeal was ‘further term of imprisonment’ for purposes of s 14(1)(b) – Orders made on 10 November 2011 confirmed – Criminal Procedure Act 2009 s 282 – Sentencing Act 1991 s 14.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Smith | Mr P A S Skehan | Victorian Aboriginal Legal Service |
| For the Appellant Droste | Mr C B Boyce | Mr R V Tait |
| For the Crown | Mr G J C Silbert SC and Mr D Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
These appeals arise out of an incident which occurred on 29 January 2010 when the appellants, acting together, severely assaulted a 43‑year‑old man in his home at Warrnambool. Smith had been to the victim’s home on prior occasions and was known to him; Droste was not.
Early on the morning of 29 January 2010, the appellants attended the unit occupied by the victim. Notwithstanding the time of day, they were both offered beer, which they accepted. Shortly after, an altercation broke out between Droste and the victim when Droste saw a photograph of a motorbike on the wall of the victim’s unit. He asserted to the victim that the bike was his and that the victim owed him money for it.
Upon this dispute breaking out, both appellants picked up knives which were lying on the victim’s kitchen bench ― Smith a serrated‑edged knife and Droste a longer black‑handled knife which also had a serrated edge. Droste made threats to the victim to the effect that if he did not pay the money which Droste alleged he owed for the motorcycle, he would not ‘get out alive’. He punched the victim to the right side of his face and then bit him on the right ear, causing significant blood loss.
Both offenders continued to berate the victim concerning the money which Droste said was owed. Smith then stabbed the victim in the back with the serrated‑edged knife and repeatedly punched him to the left side of the head. The victim escaped and collapsed near a neighbour’s wall shortly afterwards.
The victim’s injuries included a fracture of the C7 vertebra with associated disc and ligamentous injury, a fracture to the right orbit, a stab wound to the left flank, described as a superficial suture wound, a perforation of his ear drum and a haematoma in his right ear, which subsequently required surgical draining. His condition was such that he was flown to the Alfred Hospital for treatment.
Smith and Droste were quickly apprehended by police. Each of them was interviewed. Droste made a ‘no comment’ response and Smith denied his involvement in the assault.
The personal circumstances of each appellant are not markedly dissimilar. Each is an unskilled worker and each has significant prior convictions, although Droste’s include convictions for serious crimes of violence whereas, in Smith’s case, there are a greater number of convictions but they are of somewhat lesser gravity. Significantly, each was affected by alcohol, which appears to have played a significant role in the commission of the current offences. The sentencing judge considered the participation of each of the appellants in the assault to be of equal gravity.
At the Warrnambool sittings of the County Court in September 2010, each of the appellants pleaded guilty to one charge of intentionally causing serious injury. Initially, each of them received a sentence of nine years’ imprisonment, with Smith receiving a non‑parole period of seven years and Droste a non‑parole period of seven years and six months. However, subsequent to that sentence being imposed on 28 September 2010, the matter was recalled by the sentencing judge on 5 October 2010, as his Honour had been informed that his declaration as to pre‑sentence detention in respect of Droste was erroneous. As both appellants had been in custody since they were arrested, the sentencing judge had declared the period of pre‑sentence detention that each had served to be 242 days. However, after they were sentenced, Corrections Victoria informed the sentencing judge that Droste, who had been released from prison only a month or so before committing the assault, had had his parole cancelled and was subject to further imprisonment for a period of 11 months and 17 days, commencing on 3 February 2010, the date upon which his parole was cancelled. The period that he had served as pre‑sentence detention should therefore have been declared to be five days, not 242 days.
Upon receiving this intelligence, on 5 October 2010, the sentencing judge recalled the orders made in respect of Droste and delivered an addendum to his original sentencing remarks. His Honour acknowledged the error in Droste’s pre‑sentence detention declaration and referred to the necessity, caused by that error, to adjust Droste’s sentence having regard to his having to serve his parole sentence. Accordingly, he confirmed Droste’s sentence of nine years’ imprisonment but fixed a new non-parole period of seven years. The appellants thus ultimately received identical sentences, although Droste was also required to serve an additional 11 months and 17 days in custody as a result of the cancellation of his parole.
The appellants subsequently sought leave to appeal against their sentences. Leave was granted by Buchanan JA on 12 May 2011.
Appeal ― Droste
In his written case, the appellant Droste relied on the following two grounds of appeal:
1. The sentence and non-parole period are manifestly excessive.
2. The learned sentencing judge erred in conducting a further hearing on 5 October 2010 and re-exercising the sentencing discretion.
The grant of leave to appeal by Buchanan JA included leave to rely upon a third ground of appeal, namely, that the sentencing judge erred by undervaluing the appellants’ pleas of guilty and, in particular, by emphasising the strength of the Crown case while acknowledging that the pleas indicated remorse.
Mr Boyce argued the ground of manifest excess by pointing out that Droste’s head sentence of nine years’ imprisonment was almost 50 per cent of the maximum sentence for the offence of intentionally causing serious injury, in circumstances where the victim, although seriously injured in the assault, had apparently largely recovered. Such a sentence, he submitted, should be reserved for cases where a victim is left with considerable residual disability. He referred to Kane v The Queen,[1] a case in which the victim suffered permanent disfigurement as a result of part of his nose being bitten off. In that case, a sentence of eight years’ imprisonment on a count of intentionally causing serious injury was conceded to be manifestly excessive by the Crown and reduced on appeal to six years’ imprisonment. He also referred to Yang v The Queen,[2] which, he said, gave a feel for current sentencing practices in relation to the offence of intentionally causing serious injury.[3] Finally, Mr Boyce referred to Droste’s plea of guilty, his remorse and a number of other mitigating factors which he said should have resulted in a considerably lesser sentence than that imposed. The sentence imposed by the sentencing judge was, he contended, manifestly excessive.
[1][2010] VSCA 213.
[2][2011] VSCA 161.
[3]He referred in particular to paragraph [23] of the Court’s judgment in Yang v The Queen [2011] VSCA 161.
With respect to the second ground of appeal, Mr Boyce abandoned an argument made in Droste’s written case that the sentencing judge had erred in re‑exercising the sentencing discretion on 5 October 2010 because his Honour was at that point functus officio. Instead, he argued, under cover of this ground, that the sentencing judge, in re-exercising the sentencing discretion, erred in only reducing Droste’s non-parole period. The principle of totality, he said, required his Honour to reduce Droste’s head sentence as well.
With respect to the third ground of appeal, Mr Boyce referred to the following passage in the sentencing judge’s sentencing remarks:
You have each pleaded guilty and you are each entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial, and witnesses have been spared the ordeal of giving evidence upon your trial. I can tell you that the sentence I intend to impose is less than would have been imposed, had you been found guilty after a trial. Further, I take it into account in your favour that you have each pleaded guilty and intimated that relatively early, and of course you were quickly apprehended after the crime and taken into custody. I accept, in the circumstances, that each of your pleas indicates remorse for your actions, although in the circumstances, it seems your pleas were inevitable.
He submitted that the sentencing judge’s reference to the appellants’ pleas of guilty being ‘inevitable’ indicated that his Honour had reduced the weight given to these pleas due to the strength of the Crown case. This, he said, constituted specific error. He referred to the judgment of Redlich JA in R v Pajic[4] in support of this submission.
[4](2009) 23 VR 527 (‘Pajic’).
Appeal ― Smith
Mr Skehan, for Smith, adopted Mr Boyce’s arguments insofar as they applied to his client and argued a further ground of appeal based on the identical sentences imposed on both offenders. He said that the lack of disparity in these sentences infringed the principle of parity. He referred to the fact that Smith’s prior convictions were less serious than Droste’s and to the fact that Droste offended whilst on parole.
With respect to the manifest excess ground, Mr Skehan noted that the sentencing judge had stated pursuant to s 6AAA of the Sentencing Act 1991 that if the appellants had pleaded not guilty and had been found guilty by a jury, he would have imposed sentences of 10 years’ imprisonment on each of them and increased the non-parole periods fixed in respect of each of them by one year. This, Mr Skehan said, meant that the appellants had effectively received a sentence discount of 10% for their pleas of guilty. He argued that this discount was a matter that the Court could take into account in considering whether the sentences imposed on the appellants were manifestly excessive.
This argument was adopted by Mr Boyce, who went further than Mr Skehan and submitted that the s 6AAA statement could be relevant not merely to the manifest excess ground but also to the ground relating to the weight given to the appellants’ pleas of guilty. I have some doubts about the correctness of this submission. In Scerri v The Queen,[5] this Court held that the sentence discount identified in a s 6AAA statement is not examinable for specific error. Rather, it can only ever be a particular of a ground contending that a sentence is manifestly excessive.[6] To treat the s 6AAA statement made by the sentencing judge in this case as relevant to the ground of appeal contending that inadequate weight was given to the appellants’ pleas of guilty seems to me to be inconsistent with the approach of this Court in Scerri. In the event, however, given the conclusions I have reached with respect to that ground of appeal, which remain unchanged regardless of whether the s 6AAA statement is taken into account, it is unnecessary for me to express a concluded view on this matter.
[5](2010) 206 A Crim R 1 (‘Scerri’).
[6]See particularly ibid 6 (Maxwell P and Buchanan JA).
The Crown’s submissions
Mr Silbert SC, for the Crown, conceded that the sentences imposed on the appellants were at the very top end of the range available to the sentencing judge, though he did not go so far as to concede that the sentences were manifestly excessive. He suggested that the sentencing range of eight to 10 years’ imprisonment put by the Crown on the plea was, in the circumstances, probably too high. Mr Silbert also conceded that the failure of the sentencing judge to reduce Droste’s head sentence after being informed of the cancellation of his parole was a specific error which would lead to the need for Droste to be re‑sentenced.
Regarding the Pajic ground, Mr Silbert argued that the sentencing judge’s comment concerning the strength of the Crown case was innocuous and not intended to deprive the pleas of guilty of either their utilitarian value or their value as an indicium of remorse. With respect to the parity ground raised by Smith, he submitted that, when the relevant sentencing considerations for each of the offenders were taken into account, no disparity in sentences was warranted.
Conclusion
I have concluded that, in the circumstances, the sentences imposed in this case were manifestly excessive and should be set aside. In the case of Droste, he should also succeed on the totality argument with respect to his head sentence.
I would not uphold any of the other grounds. In referring to the inevitability of the appellants’ pleading guilty, the sentencing judge was doing no more than stating the obvious. His Honour’s comments do not suggest that he reduced the weight given to the appellants’ pleas of guilty because of the strength of the Crown case. Similarly, there is nothing in the parity argument put on Smith’s behalf. The sentencing judge considered the appellants to be equally involved in, and responsible for, the offending ― a conclusion that was not challenged on this appeal ― and, so far as their respective criminal histories are concerned, although Droste’s prior convictions are somewhat more serious, they are fewer in number than Smith’s. Moreover, although the sentencing judge ultimately imposed identical sentences on the appellants, the term of imprisonment that will actually be served by Droste will, as a result of the cancellation of his parole, be significantly longer than that served by Smith.
I would re‑sentence Smith to seven years’ imprisonment with a non‑parole period of five years and Droste to six years and six months’ imprisonment with a non‑parole period of four years and six months.
ROSS AJA:
I agree with the orders proposed by Bongiorno JA for the reasons his Honour has given.
BONGIORNO JA:
In the matter of Droste, the order of the Court is that:
1. The appeal is allowed.
2. The sentence of imprisonment imposed below is set aside and in lieu thereof the appellant is sentenced to six years and six months’ imprisonment.
3. A non-parole period of four years and six months is fixed.
4. All ancillary orders of Judge Parsons made 28 September 2010 are confirmed.
It is declared that the period of 299 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
In the matter of Smith, the order of the Court is that:
1. The appeal is allowed.
2. The sentence of imprisonment imposed below is set aside and in lieu thereof the appellant is sentenced to seven years’ imprisonment.
3. A non-parole period of five years is fixed.
4. All ancillary orders of Judge Parsons made 28 September 2010 are confirmed.
It is declared that the period of 650 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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Addendum
BONGIORNO JA:
CURTAIN AJA:
This addendum to the judgment of the Court delivered on 10 November 2011 is necessitated by a series of events which have occurred subsequent to that date. It forms part of that judgment. Those events and consequent actions taken by the parties and the Court are as follows.
On 14 November 2011, the Court was informed by the Office of Public Prosecutions of two matters relevant to its re‑sentencing of the appellant Droste. First, it was informed that, in the Crown’s view, the pre-sentence detention declaration that it had made in Droste’s case pursuant to s 18 of the Sentencing Act 1991 was erroneous.
Secondly, it was informed that on 4 February 2011 Droste had been sentenced in the Warrnambool Magistrates’ Court on charges of affray and recklessly causing injury. This offending, to which he pleaded guilty, concerned events which occurred on 23 January 2010, six days before the events giving rise to the sentence in the County Court with which this Court was concerned. The Magistrate sentenced Droste to an aggregate sentence of three years’ imprisonment and ordered that two years of that sentence be served cumulatively on the sentence imposed on him in the County Court. Pursuant to s 14 of the Sentencing Act 1991, his Honour fixed a new single non-parole period of eight years and six months. This non-parole period related to both the sentence imposed on Droste in the County Court and the sentence imposed on him by the Magistrate.
This Court was unaware of the sentence imposed on Droste in the Magistrates’ Court on 4 February 2011 when it delivered judgment in this matter on 10 November 2011. Upon learning of the existence of that sentence and the Crown’s view that the pre-sentence detention declaration made with respect to Droste was erroneous, it directed the Registrar of Criminal Appeals not to authenticate the orders that it had made on 10 November 2011 in Droste’s case and invited the parties to file further written submissions dealing with these matters.[7]
[7]Until a judgment or order has passed into record, it remains under the control of the Court and the Court may recall or alter the judgment or order, ‘even if [it] seeks to do so merely because [it] has second thoughts about it’: R v Saxon [1998] 1 VR 503, 507 (Tadgell and Phillips JJA and Southwell AJA). Authentication of judgments and orders of the Supreme Court in criminal proceedings is provided for in r 1.13 of the Supreme Court (Criminal Procedure) Rules 2008.
Written submissions were duly provided by the parties and on 4 April 2012 they were heard orally. This hearing was conducted by Bongiorno JA and Curtain AJA, as, prior to the hearing, Ross AJA had resigned his commission as a judge of the Supreme Court upon his appointment as a judge of the Federal Court and President of Fair Work Australia and had been replaced, for the purposes of this case, by Curtain AJA in accordance with and pursuant to s 87(2) of the Constitution Act 1975.
By the time of the hearing on 4 April 2012, the parties had reached agreement on the question of pre-sentence detention. In lieu of the figure of 299 days, which the Court had originally declared to be the period of pre-sentence detention served by Droste,[8] they were agreed that the period of pre-sentence detention served by him up until (but not including) 10 November 2011 was 413 days. An appropriate amendment to the orders made by this Court on 10 November 2011 will accordingly be made pursuant to s 412 of the Criminal Procedure Act 2009.
[8]See paragraph [25] of this judgment above.
The matter relating to the Magistrates’ Court sentence is not so easily disposed of. At first blush, the task facing this Court would appear to be the simple one of fixing a new single non-parole period that would relate to both the sentence imposed on Droste by this Court and the Magistrates’ Court sentence. In his further written submissions, however, counsel for Droste raised the issue of whether s 14 of the Sentencing Act 1991 operated to bar this Court from fixing a new single non‑parole period that was shorter than that fixed by the Magistrate. Section 14 provides as follows:
(1) If—
(a)a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and
(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period—
the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.
(2) The new single non-parole period fixed at the time of the imposition of the further sentence—
(a) supersedes any previous non-parole period that the offender is to serve or complete; and
(b)must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.
The issue raised in the further submissions was whether, in sentencing Droste on 4 February 2011, the Magistrates’ Court had ‘sentenced an offender to be imprisoned in respect of an offence and … ha[d] fixed a non-parole period in respect of the sentence’. If it had, had this Court, in re-sentencing Droste on the intentionally causing serious injury charge, sentenced him to a ‘further term of imprisonment’ for the purposes of s 14(1)(b), such that s 14(1) is engaged in this case and requires this Court to fix a new single non-parole period? If s 14(1) is engaged, then s 14(2)(b) prohibits the Court from fixing a new single non-parole period that is shorter than that fixed by the Magistrate. As counsel for Droste pointed out, this would work an injustice in this case, since the Court would be unable to reduce the non-parole period fixed in relation to Droste even though it had significantly reduced his sentence on the intentionally causing serious injury charge.
We have concluded, however, that s 14(1) is not engaged in this case. We have reached this conclusion for two reasons. First, it is clear on the authorities that a sentence imposed by this Court following a successful appeal against sentence operates from, and is taken to have been imposed on, the date on which the original sentence was passed.[9] This suggests that the sentence imposed on Droste by this Court is not, in relation to his Magistrates’ Court sentence, a ‘further sentence of imprisonment’ for the purposes of s 14(1)(b) of the Act. Rather, it is a sentence that was already in existence at the time the Magistrates’ Court sentence was imposed ― a sentence that predates that sentence. Secondly, when the Magistrates’ Court fixed a non-parole period on 4 February 2011, it did not, in our opinion, perform the function referred to in s 14(1)(a) of the Act. It did not ‘sentence[] an offender to be imprisoned in respect of an offence and … fix[] a non-parole period in respect of [that] sentence’ (emphasis added). Rather, the non-parole period that it fixed was a new single non-parole period that was fixed pursuant to s 14(1) and that related to both Droste’s County Court sentence and his Magistrates’ Court sentence.
[9]See R v Jennings [1999] 1 VR 352; DPP (Vic) v Ibrahimoff (2001) 3 VR 66.
If s 14 is not engaged in this case, then a question arises as to whether this Court has the power to fix a new single non-parole period that relates to both the sentence imposed on Droste by it and his Magistrates’ Court sentence and, if so, the source of this power. At the hearing on 4 April 2012, a joint submission was made by counsel to the effect that the Court did have the power to fix a new single non‑parole period and that the source of this power was s 282(2) of the Criminal Procedure Act 2009. Section 282 provides relevantly as follows:
(1) If the Court of Appeal allows an appeal under section 278, it must set aside the sentence imposed by the originating court and either—
(a) impose the sentence, whether more or less severe, that it considers appropriate; or
(b) remit the matter to the originating court.
(2) If the Court of Appeal imposes a sentence under subsection (1)(a), it may make any other order that it considers ought to be made.
…
The joint submission was to the effect that the power under s 282(2) to make ‘any other order that [the Court] considers ought to be made’ included, in this case, the power to fix a new single non-parole period. The remainder of the submissions at the hearing were directed to the question of how long the non-parole period fixed should be and to the circumstances relating to the sentencing of Droste in the Magistrates’ Court on 4 February 2011.
The submissions made by counsel at the hearing on 4 April 2012 proceeded on the assumption that Droste had not appealed his Magistrates’ Court sentence. However, on 10 April 2012, the Court was informed that this assumption was incorrect ― Droste had in fact appealed his Magistrates’ Court sentence and that appeal was pending in the County Court; it was due to be heard on 2 May 2012. Upon receiving this information, the Court advised the parties that it would not hand down this addendum to its judgment until the appeal in the County Court had been finalised. The Court was of the view that it should not fix a new single non‑parole period that related to a sentence in respect of which an appeal was pending. The Court also noted that it had not authenticated its orders in Droste’s case yet, and that, as such, the appeal to this Court remained unresolved. The Court requested that this situation be brought to the attention of the County Court judge hearing the appeal against Droste’s Magistrates’ Court sentence.
On 4 June 2012, this matter came on again before Bongiorno JA and Curtain AJA for mention. At the mention, counsel for the Crown informed the Court that Droste’s appeal against his Magistrates’ Court sentence had come on before Judge Allen on 2 May 2012. His Honour had felt uncomfortable dealing with the appeal, however, while this appeal remained unresolved. In particular, he had felt uncomfortable dealing with it on what counsel described as the ‘fictitious’ basis that the sentence imposed on Droste in the County Court of nine years’ imprisonment was extant and had not been reduced by this Court on appeal. Judge Allen was conscious, it appears, that, in determining Droste’s appeal against his Magistrates’ Court sentence, totality considerations relating to the sentence imposed on him in the County Court would arise. As a consequence, his Honour adjourned the hearing of the appeal before him pending the determination of this appeal.
Thus, what counsel for the Crown referred to as a ‘Mexican stand-off’ has arisen: this Court has postponed the delivery of the addendum to its judgment pending the determination of the County Court appeal; the County Court, on the other hand, has adjourned the hearing of the appeal before it pending the determination of this appeal.
Counsel for the Crown submitted that there were two ways that this Court could proceed to facilitate the resolution of this matter. First, he submitted that the Court could recall the orders that it made on 10 November 2011 and, in lieu thereof, make orders allowing the appeal, setting aside the sentence imposed on Droste in the County Court and remitting the matter to Judge Allen pursuant to s 282(1)(b) of the Criminal Procedure Act 2009 with a direction pursuant to s 282(3) that his Honour re‑sentence Droste to six years and six months’ imprisonment with a non-parole period of four years and six months. His Honour could then conclude this matter (in accordance with the directions given by this Court) and Droste’s appeal against his Magistrates’ Court sentence and, in doing so, fix a new single non-parole period.
Secondly, he submitted, in the alternative, this Court could simply confirm the orders made in this matter on 10 November 2011 and leave the task of fixing a new single non-parole period to Judge Allen. This course, he said, was only open to the Court if it was of the view that s 14 of the Sentencing Act 1991 did not operate in this case to require it to fix a new single non-parole period. For the reasons we have given above, we do not consider that s 14 is engaged here.
Counsel for Droste agreed that these were the two options available to the Court. With respect to the second option, he noted that, in determining Droste’s appeal against his Magistrates’ Court sentence, Judge Allen will be required under s 256(2)(a) of the Criminal Procedure Act 2009 to set aside the sentence imposed on Droste in the Magistrates’ Court and to re-exercise the sentencing discretion. Under s 256(2)(c) of the Act, his Honour will be able to exercise any power which could have been exercised by the Magistrate, including the power to fix a new single non‑parole period pursuant to s 14 of the Sentencing Act 1991 (assuming that the pre‑conditions for the exercise of this power in s 14(1)(a) and (b) are met). Thus, there does not appear to be any doubt that, in determining Droste’s appeal against his Magistrates’ Court sentence, Judge Allen will have the power to fix a new single non-parole period that relates to both the sentence his Honour imposes on Droste on that appeal and any sentence imposed on him by this Court on this appeal.
Both counsel ultimately submitted that the second course outlined by counsel for the Crown ― that is to say, that which involves the Court confirming its orders of 10 November 2011 ― was the preferable one. We agree. Adopting the alternative course would require this Court to consider difficult questions concerning its ability to give directions under s 282(3) of the Criminal Procedure Act 2009 requiring the County Court to decide a matter remitted to it under s 282(1)(b) in a particular way. This is not the occasion for a consideration of such questions. Accordingly, we confirm the orders made in Droste’s case on 10 November 2011, save that the declaration as to pre-sentence detention is amended to refer to the period of 637 days.
We note that, because the commencement date for the sentence that this Court has imposed on Droste is 28 September 2010, the non-parole period that we have fixed is, in relation to the Magistrates’ Court sentence, a ‘previous non-parole period’ for the purposes of s 14(2)(a) of the Sentencing Act 1991. It is thus superseded by the non-parole period fixed by the Magistrate. This non-parole period may itself, for the reasons we have given, be replaced by one fixed by Judge Allen when his Honour determines the appeal currently before him.
In the matter of Droste, the orders of the Court, as at this date, are that:
1. The appeal is allowed.
2. The sentence of imprisonment imposed below is set aside and in lieu thereof the appellant is sentenced to six years and six months’ imprisonment.
3. A non-parole period of four years and six months is fixed.
4. All ancillary orders of Judge Parsons made 28 September 2010 are confirmed.
It is declared that the period of 637 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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