Taylor v Regina

[2007] NSWCCA 191

New South Wales
Court of Criminal Appeal

CITATION:	Taylor v Regina [2007] NSWCCA 191
HEARING DATE(S):	6 June 2007
JUDGMENT DATE:	4 July 2007
JUDGMENT OF:	Basten JA at 1; Grove J at 10; Howie J at 36
DECISION:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENCES OF SUPPLYING PROHIBITED DRUG AND SUCH SUPPLY ON A CONTINUING BASIS - SEPARATE CHARGE OF DOING ACT WITH INTENTION TO PERVERT THE COURSE OF JUSTICE - ALL SENTENCES ORDERED TO BE SERVED CONCURRENTLY - OBSERVATIONS CONCERNING NEED FOR CUMULATION ON THAT SEPARATE MATTER - FINDING BY SENTENCING JUDGE THAT THERE WERE NOT SPECIAL CIRCUMSTANCES JUSTIFYING DEPARTURE FROM STATUTORY PRESCRIPTION FOR DIVISION OF NON PAROLE PERIOD AND BALANCE TERM - SPECIFICATION OF NON PAROLE PERIODS INCONSISTENT WITH THAT FINDING BUT TO ADVANTAGE OF OFFENDER IN SHORTER PERIODS THAN APPLICATION OF STATUTORY FORMULA WOULD PRODUCE - ERROR IN PROCESS BY TRIAL JUDGE DOES NOT REQUIRE LESSER SENTENCES BEING IMPOSED - SENTENCES NOT MANIFESTLY EXCESSIVE
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) Criminal Appeal Act 1912 Drugs Misuse & Trafficking Act 1985
CASES CITED:	Astill (No 2) [1992] 64 A Crim R 289 R. Hampton (1998) 44 NSWLR 729 R v Kairouz [2005] NSWCCA 247 R. v Oastler (unrep) 2 Nov 1992 NSWCCA R. v Perez [2004] NSWCCA 218 R v Way (2004) 60 NSWLR 168 Singh v DPP [2006] 164 A Crim R 284
PARTIES:	Nathan Andrew Taylor v Regina
FILE NUMBER(S):	CCA 2007/730
COUNSEL:	S. Kluss (Applicant) R. Herps (Respondent/Crown)
SOLICITORS:	Ross Hill & Associates (Applicant) S. Kavanagh (Respondent/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/2021
LOWER COURT JUDICIAL OFFICER:	Woods DCJ
LOWER COURT DATE OF DECISION:	19/05/06

2007/730

BASTEN JA
GROVE J
HOWIE J

Wednesday 4 July 2007

NATHAN ANDREW TAYLOR v REGINA

Judgment

1 BASTEN JA: In this matter the applicant pleaded guilty to four offences in the Local Court at Penrith and was committed for sentence in the District Court. He appeared before Acting Judge Woods and was sentenced on 19 May 2006, having adhered to his pleas of guilty in respect of each offence.

2 The details of the offences and the criminal conduct are set out in the judgment of Grove J, and need not be repeated here. It is sufficient to say that the most serious offence was one of supplying methylamphetamine on an on-going basis, for which the applicant was sentenced to a non-parole period of three years with an additional term of 18 months. On three further offences he was sentenced to lesser periods and in addition was sentenced for breach of a good behaviour bond. Because all of the sentences imposed were to commence on 19 February 2006, the three lesser sentences and the term for breach of the bond were all subsumed within the largest sentence.

3 As Grove J explains, each of the four sentences involved an additional term which was 50% of the non-parole period. Because his Honour expressly declined to find “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), each sentence involved a contravention of the requirement of s 44 that the balance of the term must not exceed one-third of the non-parole period for the sentence.

4 As the Court noted in Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333, (2006) 164 A Crim R 284 at [52]-[57] there is some awkwardness in the drafting of s 44 of the Crimes (Sentencing Procedure) Act. As was explained in R v Way (2004) 60 NSWLR 168, while the sentence is to be “set” in accordance with the statutory prescription, the Court must nevertheless recognise the inter-relationship between factors relevant to determining the minimum mandatory period of imprisonment required to be served by the offender (the non-parole period) and the balance of the term which the offender may have to serve and which will involve constraints on liberty, whether custodial or otherwise: see Way at [108]-[113] and Singh at [54].

5 Although, as suggested in Singh, the recasting of s 44 by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) changed the emphasis of the section, the primary purpose of the change was to accommodate the new regime of standard non-parole periods: see ss 54A-54D and Attorney-General Debus, Second Reading Speech, NSW Legislative Assembly Hansard, 23 October 2002, p 5816.

6 Section 44(3) provides that a failure to comply with sub-s (2) does not “invalidate” the sentence: nevertheless, there will be an error of law in fixing a balance of the term of the sentence which exceeds one-third of the non-parole period, absent a determination that there are special circumstances. The statutory constraint permits the balance of the term to be less than the prescribed proportion, but not more, absent the finding of special circumstances.

7 I agree with Grove J that the challenge to the respective sentences, and to their overall effect, as excessive, should be rejected. Indeed, the fact that there was no element of accumulation for the fourth offence, involving the separate conduct involved in acting with intent to pervert the course of justice, reflects an element of leniency which, though not challenged by the prosecutor, must be taken into account in assessing the proportionality of the overall term of imprisonment. However, once it is accepted that there can be no interference with the non-parole period, the balance of term must accord with the statutory prescription unless special circumstances are found. If they cannot properly be found, the balance must be reduced in each case. As Grove J explains at [33] there was material before the sentencing judge which would have justified a finding of special circumstances, as counsel for the Director acknowledged. It is therefore appropriate that such a finding be made by this Court and I would make such a finding.

8 The error in this case is not merely a disagreement with the reasoning of the trial judge, nor an inference that the trial judge failed to consider some particular issue (such as “special circumstances”) which appeared to be raised on the evidence: see Astill (No. 2) (1992) 64 A Crim R 289. This case is closer to, but not on all-fours with, Regina v Oastler (unrep, 2 November 1992, NSWCCA) in which Gleeson CJ characterized the errors in “some of the steps involved in the process of reasoning” by the sentencing judge as involving “some misapprehension on his Honour’s part as to the effect of the relevant legislation”. Rather this was a case in which the sentencing judge made an order which could not properly be made without a specific finding. Nevertheless, the making of that finding now provides the basis for the sentences imposed by the District Court. As I agree with Grove J that no “other sentence … is warranted in law and should have been passed”, there is no occasion to resentence the applicant: Criminal Appeal Act, s 6(3). The appropriate order is therefore that the appeal be dismissed.

9 For these reasons, I too would grant leave to appeal against sentence but dismiss the appeal.

10 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Woods ADCJ at Dubbo District Court. The applicant had pleaded guilty at Penrith Local Court to four charges and in the District Court adhered to those pleas. The first three charges were offences contrary to the Drugs Misuse and Trafficking Act 1985, namely supplying a prohibited drug (0.94 grammes of methylamphetamine); supplying a prohibited drug (4 grammes of cannabis) and supplying prohibited drugs on an ongoing basis (methylamphetamine). The maximum prescribed penalties, excluding possible fines, for these offences were fifteen, ten and twenty years imprisonment respectively. The fourth charge consisted of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 for which the prescribed maximum penalty was fourteen years imprisonment.

11 It will be necessary to examine how his Honour approached his assessment but his impositions were expressed as a non-parole period of two years six months and a total term of three years nine months on the first charge; a non-parole period of two years and a total term of three years on the second charge; a non-parole period of three years and a total term of four years and six months on the third charge and a non-parole period of two years and a total term of three years on the fourth charge. All sentences and non-parole periods were directed to commence on 19 February 2006 and hence all sentences were to be served concurrently. The effective enveloping term was that imposed on the third charge. His Honour stated that “the prisoner is to be released on parole on 18 February 2009”, however, as the term exceeds three years that date should have been specified as the earliest date of eligibility for parole: s 48 Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

12 The sentences were imposed on 19 May 2006 and his Honour established the commencement date to take into account ninety two days of custody referrable to these offences. The appellant had, after arrest in May 2005, been required to serve a sentence of nine months imprisonment for driving whilst disqualified. His Honour was also asked to deal with a call-up of the appellant for breach of a recognizance to be of good behaviour. The circumstances surrounding this were these. On 9 April 2003 in Mudgee Local Court he was sentenced to imprisonment for three months for the offence of affray. On appeal to the Dubbo District Court on 19 June 2003 the sentence was quashed and in lieu thereof the appellant was required to enter a bond pursuant to s 9 of the Sentencing Act to be of good behaviour for twelve months. During the currency of the bond he was convicted of a number of offences at Mudgee Local Court. His Honour found the breach proved and reimposed the sentence of three months imprisonment for the original offence ordering it to commence on 19 May 2006 which would, he noted, result in it being entirely subsumed within the sentences on the four charges.

13 A lengthy agreed statement of facts was tendered. For present purposes its contents can be summarized. In September 2004 a police task force (“Clearwater”) was formed “to investigate the large scale drug distribution and supply network” by the appellant and his brother Darren. At the time the appellant was living (with his partner and child) with his mother at her home in Mudgee. They moved to an address in Penrith where they took over the tenancy from a friend. The supplies of drugs were made from those premises.

14 Pursuant to authority, on 15 December 2004 an undercover police operative attended the address and negotiated with the appellant for the purchase of amphetamine and cannabis. The appellant extracted some of the former from a larger amount which was in a freezer and transferred it into a smaller bag and obtained the cannabis from a kitchen drawer, again transferring an amount into a smaller foil from a larger container. The operative paid for the drugs and took them to be analysed. Charges 1 and 2 relate to these supplies.

15 On 10th, 11th and 18th February 2005 similar supplies were made by the appellant consisting of 0.75 grammes, 3.3 grammes and 3.11 grammes of methylamphetamine. On every occasion the appellant measured the amounts by use of a set of scales. These three supplies constituted the ongoing supply, the subject of charge 3.

16 The call-up for breach of bond is described above. The matter had come coincidentally before Woods ADCJ at Dubbo District Court on 7 December 2004. A letter was tendered in those proceedings purporting to be authored by John Clarke of Clarke’s Bricklaying, 11 Soper Place, St. Marys, Telephone: [phone]. Police enquiries located no such person or business. The address is fictitious. The telephone number is a mobile service which was then being used by the appellant’s brother. Pursuant to warrant, telephone interceptions were made, the product of which included participation by the appellant in conversation with his brother about arranging a letter demonstrating that he had gainful employment as a bricklayer as well as another call by his brother to the appellant’s solicitor, in which he purported to be one John Clarke, who was providing an employment reference letter. Further intercepts confirmed the steps which were being taken to implement the deceit. Charge 4 reflected this activity.

17 The written submissions of the appellant expressed two grounds namely:

(i) The sentences imposed were manifestly excessive,
(ii) His Honour erred in not finding special circumstances.

18 The notice of appeal was more explicit, namely:

“1. His Honour did not comply with s44 of the Crimes (Sentencing Procedure) Act 1999.

2. His Honour failed to accord appropriate weight to the concession by the Crown that these offences fall into the lower end of the medium range for offences of this kind.

3. His Honour did not find special circumstances.”

19 Section 44 of the Sentencing Act provides:

“ Court to set non-parole period
44 (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
(3) The failure of a court to comply with subsection (2) does not invalidate the sentence.
………….. ”

20 In his Honour’s remarks on sentence he stated:

“For the drug offences, considering all the factors noted above and the seriousness of the offences in the eyes of the community and the guidelines laid down by the Courts and sentencing statistics, I find that after making full allowance for the pleas of guilty I find that appropriate periods of actual non-parole custody for this offender would be 2 years 6 months for the supply of amphetamines, 2 years for the supply of cannabis, 3 years for the ongoing supply.
For the offence of pervert the course of justice an appropriate penalty is 2 years non-parole custody after allowance for the plea of guilty.”

21 He then proceeded to find that “there is no room for any consideration of special circumstances in relation to the non-parole period” and imposed the sentences in the terms above set out. As noted, he ordered that all sentences be served concurrently which conclusion he said he had reached “having considered the principle of totality”.

22 If the total sentences imposed by his Honour are expressed in terms of non-parole period and balance terms they are, respectively: on charge 1, a non-parole period of two years six months and balance term of one year three months; on charge 2, a non-parole period of two years and balance term of one year; on charge 3, a non-parole period of three years and balance term of one year six months and on charge 4, a non-parole period of two years and a balance term of one year.

23 In every instance the balance term exceeds one third of the non-parole period. The appellant argued that, as his Honour had rejected special circumstances, the explanation for this would be perceived in an arithmetical error in computing the balance terms to be added to the non-parole periods in order to reach the total terms which his Honour expressed.

24 In reference to s 44, this Court in R v Way (2004) 60 NSWLR 168 observed at p 190:

“In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole.
While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously.”

25 In fixing a non-parole period under the section it is impermissible to determine that period and then independently to determine the balance of the term of the sentence by considering whether (or not) there are special circumstances so as to depart from the statutory relationship: R v Perez [2004] NSWCCA 218.

26 It is not clear whether his Honour implemented an impermissible approach but there is inconsistency between his rejection of a finding of special circumstances and the proportions between balance terms and non-parole periods. I am, however, unpersuaded that a consequence of that observation is that this Court should simply reduce the balance terms to the equivalent of one third of the non-parole periods. As I shall return to consider in the context of this case, the exercise of the power of the Court to intervene is dependent upon a conclusion that some less severe sentence is warranted in law: Criminal Appeal Act 1912, s 6(3).

27 It is contended that the effective sentence of four years six months with a non-parole period of three years is within the higher range for offences of this kind and “not consistent with the Crown concession” and the objective criminality. In a written submission to the District Court the Crown Prosecutor had stated:

“As the persons at whom s 25A is directed are those who appear to be participating in a practise (sic) or business of supplying prohibited drugs, it is also relevant to consider the magnitude of the operation for the supply of drugs. Whilst the quantities of drug supplied were relatively small it is submitted that the offender operated a commercial business of supplying methylamphetamine on an ongoing basis. He obtained the drug, was directly involved in the transaction to purchase the drug and actually supplied the drug and received the money. It is submitted that the objective criminality of his offending falls within the lower end of the middle of the range.”

28 That statement was focussed particularly upon charge 3. Not only is the magnitude of the operation relevant but the seriousness of the offence should be gauged against that magnitude rather than against the quantities of the drugs involved: cf R v Kairouz [2005] NSWCCA 247.

29 In the present case, the supplies extended over a period of more than two months and as the agreed facts recounted, what was under investigation was a large scale drug distribution and supply network.

30 Were this Court to come to the question of resentence, it would be necessary to consider the appropriateness of ordering the sentence for the offence of acting with intent to pervert the course of justice to be served concurrently with the offences on charges 1, 2 and 3. In my view, at least some element of cumulation would be demanded.

31 Reference can be had to published Judicial Commission statistics and they do show that the enveloping sentence is towards the higher range of impositions for one count of ongoing supply by an offender with prior convictions of the same type. The appellant has a considerable record of prior convictions including a sentence of four months imprisonment for supplying a prohibited drug which was imposed at Mudgee Local Court in May 2004. It is necessary to bear in mind that the appellant is sentenced for additional matters including the entirely separate offence arising out of the production of the false employment letter. The concession by the Crown Prosecutor in the District Court bound neither his Honour nor this Court, but should be viewed in the context of its particular reference to the offence of ongoing supply and the other drug offences.

32 The challenge to his Honour’s rejection of the submission that he should find special circumstances is in a sense rendered moot by the contradictory result that all sentences, including the enveloping sentence, divide the total term so that the period during which the appellant may be on parole exceeds one third of the minimum time in custody.

33 In the District Court, the Crown Prosecutor had acknowledged that there was support for a finding of special circumstances in the relatively young age of the appellant, then twenty seven years, and the need for rehabilitation from his drug and alcohol addictions. Whilst his Honour was not bound to find special circumstances it is, in my view, appropriate to consider his actual impositions which are consistent with such a finding in making an assessment as to whether, in the application of proper principle and authorized approach to determination, it should be concluded that some less severe sentence is warranted in law.

34 Taking account of the magnitude of the operation, the absence of a good prior record attracting leniency, the independent criminality in the commission of the offence constituting charge 4 and the benefit flowing to the appellant from the order for concurrency, it is my conclusion that no less severe sentence is warranted in law.

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

36 HOWIE J: I agree with Grove J.

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