R v PINCHAM [2000] NSWCCA 478

New South Wales Court of Criminal Appeal

CITATION : R v PINCHAM [2000] NSWCCA 478 FILE NUMBER(S) : CCA 60711/99 HEARING DATE(S) : 20/11/2000 JUDGMENT DATE : 20 November 2000

PARTIES : REGINA v Paul John PINCHAM JUDGMENT OF : Barr J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0122; 98/31/0268; 98/31/0192 LOWER COURT JUDICIAL Morgan DCJ OFFICER :

COUNSEL : Crown: PG Berman SC Applicant: DN Stewart SOLICITORS : Crown: SE O'Connor Applicant: Ross Hill & Associates

CASES CITED: R v Close (1992) 23 NSWLR 743 R v Deeble, Court of Criminal Appeal, 19.9.91, unrep DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60711/99

BARR J CARRUTHERS AJ

Monday, 20 November 2000 REGINA v Paul John PINCHAM JUDGMENT

1 BARR J: The applicant Paul John Pincham seeks leave to appeal against sentences imposed upon him in the District Court. On 11 November 1999 her Honour Judge Morgan convicted the applicant of manufacturing a prohibited drug, namely methylamphetamine, possessing a firearm, namely a .32 calibre revolver without authority, and of firing a firearm in a manner likely to endanger the safety of a certain person. 2 On the first count her Honour took into account nine further matters, namely the possession of .32 calibre bullets suitable for use with the revolver, possessing a rifle without a licence, possessing a prohibited drug, possessing a further firearm, possessing yet another firearm unlicensed, assault constituted by pointing a rifle at another person, supplying cannabis, possessing cannabis and possessing pseudoephedrine. 3 The applicant had spent a discontinuous period totalling about one year in custody, bail refused on these matters, and her Honour took that into account. 4 On the first count, and taking into account the nine additional matters I have summarised, her Honour sentenced the applicant to imprisonment for a fixed term of three years from 9 November 1999 to 8 November 2002. On the second count her Honour imposed a fixed concurrent term of imprisonment of one year. On the third count her Honour imposed imprisonment for three years, comprising a minimum term of one year three months and an additional term of one year nine months. The sentence was accumulated upon the fixed term imposed on the first count and the result was an overall sentence of six years, comprising a minimum term of four years three months and an additional term of one year nine months. 5 The first count was based upon the activity of the applicant between May 1997 and January 1999 of manufacturing amphetamines for the purpose of supply. In June 1997 police searched his house at a rural district some twenty kilometres from Narrabri and found indicia of amphetamine manufacture and supply: beakers, syringes, needles, documentary evidence of purchase of chemicals, electronic scales, resealable plastic bags and other equipment. They also found firearms. The applicant was charged with supplying amphetamines, with firearms offences and was released on bail. 6 On 8 February 1998 Mr Stephen Wilson and Ms Abigail Batton went to the applicant's property. Mr Wilson was apparently under the influence of alcohol and the applicant became agitated by his presence. He took a .22 rifle, loaded it and fired it in the direction of the vehicle in which Ms Batton was seated. He turned towards Mr Wilson and shot him in the right thigh. Mr Wilson was kept for a month and a half in the Tamworth Base Hospital and had to have massive blood transfusions. He developed a serious syndrome and renal failure following vascular surgery, and further complications included pneumonia and jaundice. Mr Wilson's liver function returned to normal after about three months. As a result of his injuries he suffered short term memory loss, poor concentration and anxiety. At the time of sentence his condition was slowly improving. 7 Reports of this incident caused the police to return to the applicant's property on more than one occasion and in November 1998 they found there glass beakers, sudafed tablets, acetone, hydrochloric acid, sodium hydroxide, condensers and other equipment suitable for use in the manufacture of amphetamines. It was then that the applicant was charged with manufacturing the drug. Again he was released on bail. 8 On 23 January 1999 police found a bush laboratory in the State forest nearby. They kept watch on it and found that the applicant and a man called Wales were using it. At that laboratory were found chemicals and equipment obviously used in the manufacture of amphetamines. 9 There is one ground of appeal. The sentences first in time were made to run from the date of their imposition. It was submitted that they ought to have been backdated to take properly into account the time the applicant had spent in custody on these matters. As I have said, the periods of pre-sentence custody were discontinuous. The most recent one was a period of 317 days commencing on 26 January 1999 and the submission was that the sentences, or at least the first sentences, should have been made to commence on that day. 10 Reliance was placed upon the judgment of Hunt CJ at CL in R v Close (1992) 32 NSWLR 743 in which his Honour observed that other than in exceptional circumstances a sentence should always be backdated to the commencement of continuous custody referable to the sentence being imposed. Reference was also made to R v Deeble, an unreported judgment of this Court of 19 September 1991 in which this Court pointed to the benefits which result from the backdating of a sentence in the way here contended for; namely, for precision and clarity about what is being done by way of sentence, to give the appearance of fairness in dealing with a person to be sentenced, and in order to allow the proper application of the statutory proportions between minimum and additional terms or non-parole periods and parole periods of the resulting sentences. 11 It was submitted that the result was that there was no proper proportion between the resulting minimum and additional terms. Notwithstanding the form of the sentences, the result was an effective minimum term of five years three months and an additional term of one year nine months, totalling seven years. Notwithstanding her Honour's finding that the special circumstances of the case required an extended period of time on parole to assist the applicant's rehabilitation the resulting additional term did not exceed one-third of the effective minimum term. 12 I do not think that this submission has been made good. Although a sentence should ordinarily be backdated to commence from the beginning of a period of pre-sentence custody a decision not to do so will not necessarily bespeak error and there may be reasons why the ordinary practice should not be followed in any particular case. This is such a case in my opinion. Pre-sentence custody was not continuous and any backdating would have entailed further adjustments to the sentence in order to avoid a resulting sentence that was too short or too long. 13 It is clear from her Honour's judgment that the finding of the need for an extended period of supervision on parole exceeding one-third of the minimum of the last accumulated sentence was to be given its place in the overall effect of the three sentences, the first of which made allowance for one year pre-sentence custody. 14 Accordingly the total effective sentence, taking into account pre-sentence custody, not only achieved what her Honour expressly intended to achieve but was appropriate to the serious criminality for which the applicant had to be sentenced. 15 In my opinion, no less than five years and three months custody without parole would have been sufficient to reflect the objective seriousness of the applicant's criminal activities. 16 I would grant leave to appeal but would dismiss the appeal. 17 CARRUTHERS AJ: I agree. 18 BARR J: The order of the Court is as I have proposed. **********