R v Graham CA293/05
[2005] NZCA 413
•14 December 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA293/05
THE QUEEN
v
PIETER ALLAN JAMES GRAHAM
Hearing: 1 December 2005
Court: William Young, Baragwanath and Potter JJ Counsel: C J Tennet for Appellant
M T Davies for Crown
Judgment: 14 December 2005
JUDGMENT OF THE COURT
A Leave to appeal out of time is granted.
B The appeal is dismissed.
REASONS
(Given by Potter J)
R V GRAHAM CA CA293/05 14 December 2005
Introduction
[1] Pieter Allan Graham appeals against a sentence of twelve months imprisonment which was made cumulative on an existing sentence for other offending, imposed by Judge P S Rollo in the District Court at Tauranga on
21 March 2005. The appellant was convicted following trial of charges of possession of equipment for manufacture of a Class B drug and possession of precursor substances. He was acquitted by the jury of a charge of manufacturing methamphetamine.
[2] The grounds for the appeal are that the sentence is manifestly excessive and/or inappropriate by being made cumulative on the appellant’s existing sentence, and that the Judge failed to take account of implications for the appellant’s parole eligibility.
[3] The Crown resists the appeal on the grounds that the imposition of a cumulative term was appropriate, that the overall term of the sentence was appropriate in light of the totality principle, and that issues of parole are not generally to be taken into account when determining the appropriate sentence to impose, and in any event were irrelevant in this case.
[4] The appellant also seeks an extension of time for filing the appeal which was filed some four months out of time. The appellant gave a number of reasons for the late filing of the appeal, including a misapprehension as to his eligibility for parole in the light of the 12 months sentence imposed cumulative on his previous sentence. The application was not opposed by the Crown and leave will be granted.
Factual background
[5] By pretending to be the nephew of the former tenant the appellant obtained occupation of a small cottage at Bethlehem near Tauranga. Police executed a search warrant on the premises on 16 May 2003 and noticed a strong chemical solvent odour coming from within the cottage. Subsequent examination by specialists revealed three separate locations within the cottage where chemicals, materials and
equipment used for the manufacture of methamphetamine were present. The appellant’s fingerprints were found on two items of equipment.
[6] The offending occurred while the appellant was on parole from a four year sentence for burglary imposed on 26 November 2001. As a consequence of his arrest for the drug related offending the appellant was recalled to prison in relation to the four year sentence, extending the release date for that sentence to 5 May 2005.
The sentence appealed from
[7] The Judge noted that the drug offending occurred while the appellant was on parole from a sentence of four years imprisonment for burglary imposed on
26 November 2001. He had been released on parole on 6 January 2003, and as a consequence of this offending he was recalled to prison to serve the balance of the four years sentence, the new release date for that sentence being 5 May 2005. The Judge noted that the appellant spent 13 days in custody prior to recall after he was arrested on 21 June 2003.
[8] He also noted that the appellant had “quite a prolific history” of burglary and other property offending, though no previous convictions for drug offending.
[9] The Judge referred to the submission of Mr Tennet (who was counsel for the appellant at sentencing), that but for the drug related offending the appellant would not have been recalled and that if a sentence of imprisonment cumulative on the existing term of four years were to be imposed, the appellant would in effect be serving two sentences originating from the same offending. The Judge considered, however, that the drug related offending was separate offending which justified a separate sentence which should be cumulative in accordance with the Sentencing Act.
[10] Having considered various authorities the Judge determined that an appropriate starting point for a sentence for the drug related offending was in the region of 15 - 18 months. He then stated:
But I do think there is some weight in what Mr Tennet has said, that you should be given some concession for an extended period of recall caused by this offending, but that should not be too great a concession.
[11] He imposed sentences of 12 months on each of the two drug related charges to be served concurrently but to be cumulative on the existing sentence for burglary, and therefore to take effect from 6 May 2005 following the expiry of the sentence for burglary. He imposed standard conditions as well as specified special conditions for a period of nine months from release date or three months from sentence expiry date.
Relevant sentencing and parole history
[12] The following summary of relevant dates has been compiled from information provided to us by counsel:
•26.11.01 Appellant sentenced to four years imprisonment for eight charges including six for burglary. Under the Criminal Justice Act the parole eligibility date was
6.12.02 and the sentence end date was 6.08.05.
• 06.01.03 Released on parole
• 13.01.03 to Further offending (drug related)
16.01.03
• 21.06.03 Arrested – remanded in custody
• 03.07.03 Interim recall
• 22.07.03 Recall decision by Parole Board
• 27.07.04 Application for parole declined
•21.03.05 Sentenced to twelve months imprisonment on drug related offending cumulative on existing sentence of
four years, effective from 06.05.05 (following release date)
• 20.04.05 Parole Board determined revised dates following
21.03.05 sentence:
Sentence End Date: 24.07.06
Release date: 23.04.06
Appellant’s submissions
[13] The appellant does not take issue with the starting point of 15 - 18 months taken by the sentencing Judge for the drug related offending, and concedes that the Judge had due regard to the principles in the Sentencing Act. The appellant further accepts that a sentence of twelve months followed by release conditions for nine months is an appropriate sentence for this offending. The appellant contends, however, that the cumulative nature of the sentence imposed resulted in a term which is manifestly excessive and/or appropriate because in the appellant’s submission:
(a) It amounts to double punishment;
(b)Insufficient regard was given to the total length of the resultant sentence and parole eligibility;
(c) The resultant sentence is longer than that intended by the sentencing
Judge.
[14] We shall consider each of these matters in turn.
Double punishment
[15] Section 26(2) of the New Zealand Bill of Rights Act 1990 provides:
26 Retroactive penalties and double jeopardy –
…
(2)No-one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
[16] The sentencing Judge rejected a submission by Mr Tennet that because following the drug offending the appellant was recalled to prison to serve the balance of his sentence of four years, if a cumulative sentence for the drug offending were imposed, the appellant would have served two sentences effectively originating from the same offending, in breach of s 26(2).
[17] In Hart v Parole Board [1999] 3 NZLR 97, Randerson J rejected a like submission (also made by Mr Tennet). He said at 101:
In my view, it is clear that the recall is simply part of the punishment for the original offending. Had parole not been granted in respect of the earlier offending, then the appellant would still have been serving his sentence in that respect. The granting of parole, as has been stated on many occasions, amounts to a licence during good behaviour. Where further offending occurs, a punishment may result for that offending and the offender may be recalled on the original sentence to complete it subject to earlier release at such time as the Parole Board in its discretion thinks fit. In my view, that cannot amount to a double punishment contrary to s 26(2) of the New Zealand Bill of Rights Act.
[18] In the recent case of Charles v New Zealand Police HC Palmerston North
CRI 2005-454-31 29 August 2005 MacKenzie J stated at [7]:
The appellant became liable to recall on the earlier sentence as a result of this offending, and, to that extent, a cumulative sentence might be viewed as involving a double penalty for this offending. However, when both the Sentencing Act and the Parole Act 2002 are considered, I consider that the scheme of the legislation envisages that result, and the fact that offending by a person on parole may have separate consequences under each of those Acts does not make a cumulative sentence wrong in principle. The two processes, namely recall for the earlier offending and sentencing for the current offending, are separate processes. By virtue of s 83(1) and (2) of the Sentencing Act, cumulative sentences may be imposed where an offender is the subject of a final recall order on the earlier sentence. There is nothing in s 84 which suggests that the imposition of a cumulative sentence in circumstances such as these is inappropriate. Nor, on the facts of this case, are there any special circumstances to justify departure from the ordinary general principle that separate offending should be dealt with by cumulative sentences.
We are not suggesting that when a prisoner is recalled the period for which he has been recalled should be credited, as it were, against the next sentence. that would negate the punitive element inherent in a recall, which is an incident of the original sentence.
[20] The appellant’s drug related offending on 13 - 16 January 2003 had two consequences: he was recalled to serve the balance of the sentence from which he had been released on parole, and he became liable to penalty for that offending. These are separate consequences each triggered by the drug offending and resulting in separate processes under respectively the Parole Act 2002 and the Sentencing Act
2002.
[21] A grant of parole amounts, as observed by Randerson J in Hart, to a licence during good behaviour. There is no right to release on parole. A grant of parole is a conditional release from custody, subject to a liability of recall if the conditions of release are not observed. If an order for recall is made, then parole ceases, and the offender will be required to serve the balance of the sentence (subject to the right to apply for parole again after the parole eligibility date). Thus, if a paroled prisoner offends while on parole and is recalled, the impact is on the term of imprisonment imposed for the original offending.
[22] The new offending will, of course, expose the offender to penalty and must receive a sentence which is appropriate in terms of the Sentencing Act.
[23] There can be no question of the offender being punished twice for the same offending. That the later offending may trigger consequences under both the Parole Act and the Sentencing Act is entirely consistent with the legislative policy of the two statutes which were part of the same legislative passage.
[24] The sentencing Judge was therefore correct in rejecting the submission for the appellant. This ground of appeal fails.
[25] The effect of the cumulative sentence of twelve months imposed by the Judge was to extend from four to five years the appellant’s term of imprisonment. In oral submissions Mr Tennet submitted that the effect of the cumulative sentence was to destroy the appellant’s automatic release date which “left him at the mercy of the Parole Board”. In counsel’s submission, a concurrent sentence should have been imposed which would have preserved the existing release date.
[26] Section 85 of the Sentencing Act provides:
Court to consider totality of offending
(1) … if a court is considering imposing sentences of imprisonment for
2 or more offences, the individual sentences must reflect the seriousness of each offence
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[27] The Judge stated at [8] of his sentencing notes that the drug offending was separate offending which justified a separate sentence which should be cumulative in accordance with the provisions of the Sentencing Act. He reminded himself with particular reference to R v Mwai [1995] 3 NZLR 149 that there is no inflexible rule about a sentencing Judge having regard to release dates, and of the need for the sentencing Judge in an appropriate case, to have regard to the realities of the case to ensure a just sentence.
[28] A perusal of the sentencing notes when the appellant was sentenced on
26 November 2001, show that the appellant was sentenced for eight offences including six burglaries in the period 5 November 2000 to 7 August 2001 which the sentencing Judge on that occasion described as:
Burglaries of commercial premises that were well planned and skilfully executed (which) demonstrated your developed skill in this area.
[29] The Judge also noted the appellant’s 23 convictions for dishonest offending since 1994, ten of which were for burglary and another two for burglary related offences. He observed that the appellant had been:
A plague on the community for a number of years.
[30] In sentencing the appellant for the drug related offending on 13 - 16 January
2003, Judge Rollo was required by s 85(2) of the Sentencing Act to stand back and consider whether the total period of imprisonment that would result from the cumulative sentence proposed, was wholly out of proportion to the overall gravity of the offending. He made an allowance of three to six months from the starting point taken of 15 - 18 months to reach a sentence of twelve months for that offending which made cumulative on the existing sentence of four years, gave rise to a cumulative sentence of five years. We consider that sentence was clearly within the available range when the appellant’s criminality is viewed overall.
[31] Counsel for the appellant also submitted that the Judge failed to take into account the impact on the appellant’s parole eligibility of the cumulative sentence. While accepting the principle articulated in R v Stockdale [1981] 2 NZLR 189 that in general it is not appropriate for a Court to have regard to parole eligibility in determining a proper sentence, he submitted in reliance on Mwai, that the principle is not inflexible and that though offending on parole may be justifiably regarded as an aggravating feature there was a need to take full account of the effects of the recall prompted by the offending, on parole eligibility.
[32] Offending while on parole is a relevant aggravating feature of the offending. But as stated in Baynes-Carter at 5:
… in the case of a prisoner who has been recalled, when referring to the fact that the prisoner offended shortly after release, or while on parole, a sentencing Judge needs to take care that an accused is not unfairly penalised in a double fashion, or that such an appearance is given.
[33] It is inevitable that by his offending on parole the appellant adversely affected future applications for parole. In its decision of 20 April 2005 the Parole Board, while recording that the appellant could bring a further application for
parole, indicated that the Board “would not be particularly sympathetic” in the circumstances of the appellant’s previous offending and offending on parole.
[34] However, the cumulative sentence imposed on 21 March 2005 did not prejudice or affect the appellant’s right to apply for parole.
[35] Pursuant to s 75 of the Parole Act cumulative sentences are to be considered as “notional single sentences”.
[36] Section 84 provides:
Non-parole periods-
…
(4)The non-parole period of a long-term notional single sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence.
(5)For the purpose of calculating the non-parole period of a long-term notional single sentence,-
(a)every short-term sentence (being a sentence imposed after the commencement date) within the notional single sentence must be treated as if it had a non-parole period of one-third of its length; and
(b)every long-term pre-cd sentence under which the offender is eligible for parole must be treated as if it had a non- parole period of the period represented by the time between the commencement of the sentence and the close of the date on which the offender is eligible to be released on parole from that sentence under section 89 of the Criminal Justice Act 1985; and
(c) …
[37] The appellant’s original sentence of four years is a pre-commencement date (pre-cd), long-term sentence and therefore falls under s 84(5)(b). Section 89(3) of the Criminal Justice Act provides:
An offender who is subject to a determinate sentence of imprisonment for a term of more than 12 months, not being a sentence for a serious violent offence, is eligible to be released on parole after the expiry of one-third of that sentence.
[38] Thus, the non-parole period of the appellant’s four year sentence is
16 months. The non-parole period for the twelve month sentence imposed cumulatively, under s 84(5)(a) is four months. Therefore the total non-parole period for the appellant is twenty months, which expired on 6 September 2004.
[39] Accordingly when the appellant was sentenced on 21 March 2005 he was eligible for parole immediately and there was no effect on parole eligibility for the Judge to take into account. This situation is recognised in the Parole Board’s decision of 20 April 2005 which recorded that the appellant could bring a further application for parole.
[40] The second ground of appeal also fails.
Sentence longer than Judge intended
[41] This submission seems to hinge on the interpretation of counsel for the appellant that the Judge intended that the appellant should serve a sentence of six months (one-half of the short term sentence of twelve months imposed (s 86 Parole Act)) coupled with post-release conditions for nine months. However, there is nothing in the sentencing notes to indicate such an intention. The Judge specified an alternative of three months from sentence expiry date for the post-release conditions. He specifically determined that a cumulative sentence was appropriate and specifically stated that the sentence of twelve months was to take effect from 6 May 2005, being the release date for the previous sentence.
[42] This submission has no merit.
Summary
[43] The use of cumulative sentences in a case such as this is clearly contemplated by s 84(1) of the Sentencing Act. The drug related offences were unrelated in nature, time and place to the series of offences, mainly burglary, for which the appellant was sentenced on 26 November 2001.
(a) Each must reflect the seriousness of the relevant offending;
(b)They must not in totality result in a total period of imprisonment which is disproportionate to the gravity of the offending overall.
[45] An appropriate approach when considering the imposition of a sentence cumulative on an existing sentence is to consider whether the cumulative sentence would be appropriate for all the offending if the prisoner were to be sentenced at the same time. Offending while on parole is an aggravating feature to be taken into account but when the offending results in recall, in standing back and considering the totality of the sentence, care needs to be taken that the offender is not unfairly penalised in what might be viewed as a double fashion.
[46] Here the sentence of twelve months for the drug related offending was appropriate, as the appellant accepts. Given the overall offending of the appellant a cumulative sentence of five years was within the available range. When the Judge stated that it was appropriate to give some weight to the period of recall he achieved in effect, recognition of the totality principle which persuaded him that the starting point of 15-18 months required a reduction to produce a resultant sentence of twelve months, thus a cumulative sentence of five years.
[47] In general it is not appropriate for a Court on sentencing to have regard to parole eligibility in determining a proper sentence (R v Stockdale). In this case the cumulative sentence imposed did not affect the appellant’s parole eligibility date in any event.
[48] An offender may not, of course, be subjected to a total penalty that is disproportionate. This judgment has been confined to the judicially imposed component. Parole issues must be pursued by the prisoner with the Parole Board under the provisions of the Parole Act. The remedy of judicial review is available if necessary to ensure that the Parole Board discharges its important functions according to law.
[49] Leave to appeal out of time is granted. [50] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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