Regina v Scott [2001] NSWCCA 418

New South Wales Court of Criminal Appeal

CITATION : Regina v Scott [2001] NSWCCA 418 FILE NUMBER(S) : CCA 60195/01 HEARING DATE(S) : Monday 15 October 2001 JUDGMENT DATE : 15 October 2001

PARTIES : Regina v John Herbert Scott JUDGMENT OF : Grove J at 1; Bell J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0245 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : R.A., Hulme (Crown) M. Gelbert (Applicant) SOLICITORS : S.E. O'Connor (Crown) Brenda Duchen (Applicant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - LONG DELAY BETWEEN OFFENCE AND IMPOSITION - SOME FACTORS FAVOURING OFFENDER - COMMENTS BY CROWN PROSECUTOR INSPIRING EXPECTATION - ABSENCE OF SPECIFIC REASONS FOR DISAGREEMENT - SPECIAL CIRCUMSTANCES - SENTENCE RECONSTRUCTED TO SHORTEN NON PAROLE PERIOD - NO SPECIAL MATTER OF PRINCIPLE DECISION : APPEAL ALLOWED

IN THE COURT OF CRIMINAL APPEAL

60195/01

GROVE J BELL J

Monday 15 October 2001

REGINA v JOHN HERBERT SCOTT

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Nield DCJ at the Parramatta District Court. On that occasion the applicant appeared before his Honour charged upon indictment with supplying a prohibited drug, namely heroin, of not less than the commercial quantity and in the alternative of supplying that prohibited drug. The applicant pleaded guilty to the alternative count and was accordingly convicted. 2 I mention at the outset that three matters were taken into account on a form one. These related to essentially what might, I think, be called traffic matters although two of them were quite serious, but for present purposes I do not regard them as of great moment. 3 It is appropriate to sketch a little history which ultimately brought the applicant before the Court at Parramatta. The offences in the indictment were alleged to have occurred between January and August 1991. The evidence showed that the applicant's involvement would have become known to police in about 1994 when information was forthcoming from a co-offender. The applicant was then charged in 1996. The original charge against him was the more serious charge relating to the commercial quantity which is manifest in the first count of the indictment, which I have already mentioned, in respect of which the Crown accepted his plea of not guilty. However, that charge was earlier brought to trial before his Honour Judge Grogan and a jury and resulted in a conviction. Grogan DCJ sentenced the applicant to seven years imprisonment and a non-parole period of four years. At least he sentenced him in terms equivalent to those I have mentioned. 4 The applicant succeeded in an appeal to this Court. It can be mentioned that the appeal ground which was successful really had nothing to do with the merits of the matter but that does not seem to me to be relevant. A new trial was ordered and it was in relation to the presentation of the applicant for further trial that the Crown added the alternative to the indictment to which the applicant pleaded guilty. It should be observed, therefore, that the actual offence to which the applicant pleaded guilty was not available to him until relatively recently. 5 The applicant had appeared before his Honour in February this year and thus it was some 10 years between offence and appearance before the District Court. 6 I would not regard the four years, or three years, which elapsed between 1991 and 1994 as particularly relevant to sentencing discretion. If investigating authorities are not in possession of appropriate information it can scarcely be complained of as a matter of disadvantage that a person's wrong doing has not been detected. It is important, however, to bear in mind that ultimately the wrong doing of the applicant is to be assessed in terms of the offence to which he actually pleaded guilty and not that which was outstanding between about 1996 and the early part of this year. 7 The applicant is forty four years of age. He has had, on the evidence before his Honour, a long term problem with addiction to heroin. No doubt at least in part as a consequence of that he has a significant criminal record. However, it might be observed that between 1992 and the present, and the current matter as I have said relates to events in 1991, the applicant has only twice been before courts, on neither occasion in relation to drug matters but overall, given his offending in the past it might be said there is at least slightly more than a glimmer of prospect that he may have the ability to turn around his previous conduct. 8 On behalf the applicant three grounds have been presented. They are in short; first, that the learned sentencing judge did not give sufficient weight to the staleness of the offence; second, that he erred in failing to find special circumstances (which was the case, and his Honour did not vary the statutory ratio) and; third, that the sentence was manifestly excessive. Although his Honour was, as I have indicated, dealing with an offence which did not involve a Crown allegation relating to commercial quantity he nevertheless assessed the appropriate sentence at six years imprisonment. This was, it can be observed, but one year less than Grogan DCJ had imposed for the more serious offence. His Honour Judge Nield, however, did express the view that in his opinion the sentence earlier imposed was inadequate. It was not necessary for this court to express an opinion about that difference between the views of the two judges. 9 His Honour expressed himself as taking into account the applicant's plea of guilty and said that he would give him a discount of 20 percent for that reason. Rounding figures slightly, he then imposed a sentence of imprisonment for four years and nine months with a non-parole period of three and a half years. It is, therefore, against that sentence that this application is brought. 10 In his remarks on sentence he made reference to the delay which is the subject of the first ground advanced on behalf of the applicant today. What his Honour said was "frankly I cannot see how the delay in the prisoner being charged is either relevant or important in determining an appropriate sentence to impose upon the prisoner for the offence of which he has pleaded guilty. However, the period between the commission of the particular offence and the imposition of punishment for that offence is both relevant and important in determining an appropriate sentence." I would take his Honour to be referring to the total of ten years which had elapsed between the commission of the offence and the applicant appearing before him. In my view it is correct for the applicant to describe the offence as "stale" but that is not to say that appropriate punishment should not be imposed. 11 However that delay ought to work in favour of the applicant and yet, as the discount which I have mentioned would reveal if his Honour applied the discount as he said he would for the plea of guilty, it appears, although he has made this remark (of favour for delay), he has given the applicant no credit in respect of it. Indeed, other than the discount for the plea of guilty it can be seen that in his Honour's assessment there has been no other benefit towards the applicant's interest. 12 There is what I might describe as a peripheral matter which should be the subject of reference. At the outset of proceedings before Judge Neild in the usual fashion the Crown Prosecutor presented facts and addressed his Honour. He told the learned judge something of the curial history that had brought the matter before the Court and then stated, obviously in the presence of the applicant, "I anticipate that Mr Gelbert will be submitting, bearing in mind that sentence was for a commercial quantity, the prosecution has now accepted a plea to supply simpliciter that the period of two years and twenty two days would meet the necessary criminality as a minimum term or as a fixed term if you like." The learned Crown Prosecutor then went on to say he had been briefed in the matter in lieu of another prosecutor who was unavailable but then added " that the prosecution concedes that your Honour would not be falling into any appealable error if your Honour accedes to that submission." The period of two years and twenty two days represents time in custody pending the appeal which the applicant had served in respect of the offence. 13 In the course of Mr Gelbert's submissions on behalf of the applicant he made reference to that submission. It is obvious that his Honour had the impression therefrom and from what had been said by the Crown Prosecutor that both parties were inviting him to construct a sentence which would involve an acceptance that time served to the then present time would be sufficient and he said, after looking at some documents however that he needed to consider the position more fully "before I accede to the proposition that you both have put forward." Again, it must have occurred in the presence of the applicant and the Crown Prosecutor then sought to clarify his position and pointed out that, although he had said that the judge would not fall into appealable error, he was not submitting that such a sentence would be an appropriate result. 14 Given that background, it would be unsurprising if there was not created in the mind of the applicant or indeed any person in a similar position, an expectation as to what might happen. His Honour simply observed when he came to pass sentence that "the Crown Prosecutor, although not making any submission as to sentence commented that if I was to sentence the prisoner to imprisonment for a fixed period of two years twenty two days, I would not fall into appealable error." As is obvious from the balance of his Honour's remarks, his assessment was that a longer imposition should be made. 15 It would have been desirable if his Honour had perhaps elaborated his reasons for rejecting the matters which had been canvassed before him, importantly in the hearing of the applicant. If one were to combine those circumstances with the absence of any discount beyond the arithmetical discount which his Honour mentioned he would give for the plea of guilty, it would seem to me that circumstances are shown which make it appropriate for this court to intervene and reconsider the matter of sentence. 16 I have not, however, made reference to the other two grounds advanced on behalf the appellant. Simply to say that the sentence was manifestly excessive seems to me to carry little weight. An assessment of six years to be discounted for a plea of guilty would not seem to me to be outside the range of the sound exercise of discretion. 17 That brings me to the final ground which asserts that his Honour erred in failing to find special circumstances. A finding of special circumstances is essentially a finding of fact. His Honour, when he came to that question, merely commented that he could not see any circumstances which he considered to be special. He mentioned the type of circumstances which may occur in various cases. There was evidence before him of the age of the applicant. I have already made some reference to the comparative absence of offending during a relatively long period during the decade last past which contrasts considerably with the applicant's record of persistently offending in his younger days. A submission was made in writing that the applicant could be regarded as at an age where long term users of illicit drugs can "run out of steam" and seek a lifestyle less active and turbulent. It is acknowledged that the applicant has been in gaol for a number of years but in recent years he seems to have modified his lifestyle. That would seem to be confirmed by the absence of adverse encounters with the law to any great extent during the 1990s. It appears to me then, therefore, that there is, as I have earlier said, more than a glimmer of real prospect that rehabilitation might be able to be achieved. Accordingly, I think, given the evidence it can be concluded, although perhaps marginally, that his Honour's determination that there were no special circumstances to be found, was wrong. 18 I would propose, therefore, that the following orders be made. The application for leave to appeal be granted and the appeal allowed. The sentence below quashed but there be reimposed upon the second count of the indictment imprisonment for a term of four years and nine months to commence on 15 March 1999 and I would specify a non-parole period of two years eight months to commence on 15 March 1999 and, therefore, to expire on 14 November 2001 upon which date the applicant would be eligible for consideration for parole. 19 BELL J: I agree. 20 GROVE J: The orders of the Court, therefore, will be as I have proposed.