Starmer v R

[2008] NSWCCA 27

New South Wales
Court of Criminal Appeal

CITATION:	Starmer v Regina [2008] NSWCCA 27
HEARING DATE(S):	15 February 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 2; Simpson J at 18
EX TEMPORE JUDGMENT DATE:	15 February 2008
DECISION:	Leave to appeal against sentence granted. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Pre-sentence custody - Desirable practice of backdating affirmed - No error in adopting different practice when allowance clearly demonstrated
CATEGORY:	Principal judgment
CASES CITED:	Assafiri v R [2007] NSWCCA 159 R v Bernier [1998] 102 A Crim R 44 R v Hall [2005] NSWCCA 217 R v Howard [2001] NSWCCA 309 R v McHugh (1985) 1 NSWLR 588 R v Nasher [2005] NSWCCA 238 R v Viana [2001] NSWCCA 171
PARTIES:	David Starmer (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3008
COUNSEL:	A Francis (Applicant) P McDonald (Respondent/Crown)
SOLICITORS:	Legal Aid Commission (Applicant) Commonwealth DPP (Respondent/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0665
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ
LOWER COURT DATE OF DECISION:	19 January 2007

CCA 2007/3008

McCLELLAN CJ at CL
GROVE J
SIMPSON J

15 February 2008

David STARMER v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: The applicant appeared for sentence before Tupman DCJ at Sydney District Court where he adhered to a plea of guilty previously made in the Local Court to a charge of conspiracy to import a traffickable quantity of a prohibited drug (cocaine). He was sentenced to imprisonment for three years and ordered to be released on recognizance after serving eighteen months thereof. The scheduled release date is 18 July 2008.

3 At the relevant time the applicant was aged thirty seven and his sister (Nancy) aged thirty three. They were born in England. The applicant acquired Australian citizenship but returned for a time to the United Kingdom and then re-entered Australia in October 2005. His sister, who remained a British citizen, lived in the United Kingdom.

4 As her Honour found, the applicant was a person who used drugs and alcohol and had an addictive personality but otherwise was well regarded, a good employee and a reliable person. He persuaded his sister to become involved in sending him cocaine from the United Kingdom. There was a suggestion that it was cheaper there. The method of transporting the drug was described as unsophisticated. Nancy posted greeting cards containing the drug. They were sent to Nick Kirby, a false name assumed by the applicant, to an address connected with him. In all some eleven cards were despatched.

5 Police investigation had been instituted and telephone calls were lawfully intercepted as well as two of the cards. Her Honour found that a gross amount of 70.4 grams estimated as 32.4 grams pure cocaine was imported. The applicant used some of the drug to feed his own habit and sold some to friends and work colleagues and used some for rent payment. He had sent $1900 to his sister in order to fund purchases. The enterprise was terminated before the applicant was arrested because he feared discovery and had seen a newspaper headline about a person being sentenced to ten years imprisonment for importing drugs into Australia.

6 The applicant has filed a single ground of appeal, namely:

“The sentencing judge erred by failing to demonstrably take into account the pre-sentence custody and backdate the sentence accordingly.”

7 The pre-sentence custody totalled five weeks and extended from 22 February 2006 to 29 March 2006. In reference to both the applicant and his sister her Honour referred to each of them having spent five and half weeks in custody on two occasions during her remarks on sentence and on the third occasion, in reference to the applicant, she said:

“… it seems to me that so far as Mr Starmer is concerned an overall term of imprisonment of three years is called for. That is the term that I propose to set. I will be setting a recognisance release order that comes into effect eighteen months after the commencement of the sentence date, that is something in the nature of a non-parole period. I have chosen that length which may be perceived to be somewhat shorter than the norm, taking into account the fact that he has already spent five and a half weeks in custody, bail refused which I do not propose otherwise to incorporate into the sentence.”

8 Accordingly, the sentence was directed to commence on the date of imposition, 19 January 2007, the applicant having been on liberty on bail after 29 March 2006 until then.

9 The comprehensive submission on behalf of the applicant was that the sentence should have been directed to commence five weeks prior to 19 January 2007 to give appropriate account to pre-sentence custody.

10 It is well established that it is desirable and preferable sentencing practice to give effect to service of pre-sentence custody exclusively referrable to a sentence then being imposed by backdating the sentence for the equivalent period of that custody: R v McHugh (1985) 1 NSWLR 588. That practice is also desirable when dealing with Federal offences: Assafiri v R [2007] NSWCCA 159.

11 It was observed in McHugh that the desirable practice would promote accuracy of the record. Obviously it would also provide transparency in the process when there is precise backdating.

12 However, it is not obligatory for a sentencing judge to adopt the practice and it does not, viewed in isolation, demonstrate error to depart from it. Counsel for the applicant has pointed to cases where this Court has intervened, but in all of them the sentencing proceedings were detected to have been affected by ambiguity so that it was not clearly demonstrated that appropriate account had been given to service of pre-sentence custody; R v Nasher [2005] NSWCCA 238; R v Hall [2005] NSWCCA 217; R v Howard [2001] NSWCCA 309.

13 In order to attract intervention by this Court it is necessary to show that relevant error has occurred. On some occasions this can be detected by analysis of the sentence structure in terms of ingredient periods and ultimate result but this is not always the case. The task of the sentencing judge is one of assessment and not one of simple arithmetical calculation. There is no requirement for judges to sentence only in “round figures”.

14 It is important that, in this case, her Honour expressly referred to setting a non-parole period “somewhat shorter than the norm” to take into account the pre-sentence custody. I do not doubt that the “norm” to which her Honour referred was the generally applied proportion between non-parole period and head sentence for Federal offences of between 60 and 66 percent, which has been stipulated in judgments of this Court: R v Bernier [1998] 102 A Crim R 44; R v Viana [2001] NSWCCA 171.

15 Had her Honour fixed a non-parole period in the range just mentioned, it would have lain between 21.6 months and 23.76 months of custody which, even at the lower end, indicates that somewhat more than five weeks reduction had been allowed.

16 Her Honour expressly stated that she made the allowance. The calculations just made show that it was not inadequate. It was not demonstrated that her Honour overlooked any relevant matter nor that there was any error in setting the term.

17 I would grant leave to appeal against sentence but dismiss the appeal.

18 SIMPSON J: I agree.

19 McCLELLAN CJ at CL: The orders of the Court are as Grove J indicated.

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