New South Wales Court of Criminal Appeal CITATION : Regina v Clarke [2001] NSWCCA 223 revised - 7/08/2001 FILE NUMBER(S) : CCA 60462/00 HEARING DATE(S) : 1 June 2001 JUDGMENT DATE : 1 June 2001 PARTIES : Regina v John William Clarke JUDGMENT OF : Dowd J at 40, 42; Smart AJ at 1; Einfeld AJ at 41 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 0021/3041 - 98/21/3135 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : (A) A J Bellanto QC (C) M C Grogan SOLICITORS : (A) Laurence J Treanor & Co (C) S E O'Connor CATCHWORDS : Sentencing - Application of principle of totality LEGISLATION CITED : Crimes Act 1914 (C'wealth) R v Visconti (1982) 2 NSWLR 104 R v Pearce (1998) 194 CLR 610 R v Close (1993) 65 A Crim R 55 R v Longley NSWCCA unreported 21 April 1994 CASES CITED: R v Heard NSWCCA unreported 5 April 2000 R v Watt NSWCCA unreported 22 March 2000 R v Langbein NSWCCA unreported 29 May 2000 R v Wong & Leung (1999) 48 NSWLR 340 R v Thompson & R v Houlton (2000) 115 A Crim R 104 DECISION : Leave to appeal against Commonwealth offence granted - appeal allowed - sentence quashed - in lieu applicant sentenced in respect of Commonwealth offence to 3 years imprisonment dating from 26 April 2000 - decline to set non-parole period; Leave to appeal against State offence granted - appeal allowed - sentence quashed - in lieu applicant sentenced to imprisonment for 5½ years commencing 26 April 2003 with non-parole period of 2½ years commencing that day and ending 25 October 2005. IN THE COURT OF CRIMINAL APPEAL 060462/00 DOWD J SMART AJ EINFELD AJ Friday 1 June 2001 REGINA v JOHN WILLIAM CLARKE JUDGMENT 1 SMART AJ : John William Clarke seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 23 June 2000. He pleaded guilty to the offence of supplying a large commercial quantity of a prohibited drug, methylamphetamine, for which the maximum custodial sentence is life imprisonment. For this offence, which occurred on 11 December 1997, he was sentenced to imprisonment for seven years with a non-parole period of three years and six months taking into account the offence of goods in custody. 2 He pleaded guilty to the further offence of possession of a prohibited import reasonably suspected of having been imported into Australia, namely, a trafficable quantity of heroin and was sentenced to imprisonment for three years. No non-parole period was stated and the judge did not expressly decline to fix a non-parole period. 3 The judge directed that the sentences be served cumulatively with the sentence for the Commonwealth offence commencing on 4 May 2000 and the sentence for the State offence commencing on 4 May 2003. Thus the applicant was sentenced to a total period of imprisonment for ten years and was eligible for release on parole after six and a half years. 4 The judge, in fixing the commencing date of the sentences, proceeded on the basis that there had been fifty-one days pre-sentence custody. It now transpires that there were fifty-nine days pre-sentence custody and accordingly any sentences will have to date from 26 April 2000. 5 The State offence The applicant's vehicle was observed and followed to an underground carpark at Beverly Hills. There was a backpack in the vehicle. It contained 1.8 kilograms of methylamphetamine mixture. The percentage of methylamphetamine in the powder mixture was less than 4 per cent. The value of the drugs has been estimated as varying between $48,000 and just under $180,000. The offence was committed while the applicant was on parole for the offence of armed robbery. Also found in the vehicle were some sixty pairs of expensive sunglasses priced at $195 per pair. 6 The Commonwealth offence From 8 September 1999 pursuant to a warrant the applicant's telephone calls had been intercepted. He had been active and in contact with two men involved in the drug trade. During the afternoon of 19 October 1999 arrangements were made whereby one of these men arranged to leave Sydney and meet the applicant at Wyong. The applicant drove from the other man's home at Fern Bay to the rendezvous arriving there about 4.58pm. 7 About 6.34pm the man coming from Sydney parked his vehicle alongside that of the applicant. The applicant entered the other man's vehicle, remained there for about three minutes and then returned to his vehicle. The applicant now had a white object in a pocket of his tracksuit top. The other man drove off. 8 At 6.40pm, as the applicant began to drive away, the police signalled him to stop. He threw an object from the driver's side window. The object which was wrapped in a white coloured cloth landed on the side of the road. Near the cloth was a clear plastic bag containing fragmented blocks of off white powder. The applicant told the police that he was waiting for his girlfriend and that he had no knowledge of the item thrown from the window. 9 $4,700 was found in the applicant's tracksuit top and $305 in his wallet. The off white powder weighed 138.2 grams with a pure heroin content of 62.8 grams. The potential value of 62.8 grams of heroin was estimated to be between about $30,000 and $50,000. 10 This offence was committed whilst the applicant was on bail for the first offence. By the time of the second offence the parole period had expired. 11 Level of Responsibility The judge found that the applicant's involvement appeared to be as a driver. He was a courier but nevertheless an important link in the chain of drug distribution. The judge held that there was no evidence that the applicant was a drug user and that the offences were committed for the purposes of commercial gain. The judge accepted that this probably resulted, at least in part, from the applicant being unemployed. 12 Pleas The judge expressly took into account the applicant's pleas of guilty by way of mitigation. The judge noted that the State matter had been listed for trial on a number of occasions and not reached. Later, when the applicant received other legal advice, he changed his plea to one of guilty. The judge noted that by his plea the applicant had obviated the need for a trial which would probably have been of considerable length. The judge also took into account that the plea in the Commonwealth matter was entered at a very early stage, it being committed for sentence rather than trial. 13 Counsel for the appellant has pointed out that because of the erroneous legal advice the applicant was given, there was delay in dealing with the State offence and the applicant was involved in considerable legal expense. That precipitated the second offence. 14 Prior Record While the applicant's record dates back to 1964 when he committed an offence as a juvenile, there was a break until 1971/1972 when he had a few offences for which he did not receive a custodial sentence. There were no offences from 1972 to 1978. In the latter year he was fined for a minor offence. With the exception of one very minor offence in 1982 there were no offences between 1978 and 1994. However, in 1994 he was sentenced to imprisonment for a minimum term of three years and an additional term of one year for robbery while being armed. 15 The applicant's record - and I refer in particular to the offence of robbery while being armed - does not give him great assistance, especially when he was on parole at the time of the State offence. However, his record does not wholly disentitle him to some leniency. 16 Subjective Features The applicant was born on 23 November 1947 and comes from a family of five children. His parents separated when he was six and he was raised in foster homes and juvenile institutions with little contact with his siblings. This background probably helps to explain his offence when a juvenile. 17 He married at the age of eighteen and divorced five years later. He has no contact with his two children from that union. He married again when he was twenty-seven. He remains in contact with the three children of that union which lasted some years. He has two children by his present wife and has supported her and them. He has been greatly embarrassed for them. They live in a small country town and his misdeeds would be widely known. 18 The applicant left school at the age of fifteen after having obtained his school certificate. He has worked at various unskilled jobs over the years and for eighteen years in the carpet laying trade. He sustained some back injuries some ten years ago and since then he has had trouble working. He was on unemployment benefits at the time of sentencing. The lack of employment and consequent lack of money may explain his involvement in the drug trade. It does not, of course, excuse it. 19 In addition, the applicant suffers from gastric problems that require medication and frequent check-ups. The judge noted that there was nothing in the medical report to suggest that the applicant's condition will prove to be one which gives rise to any particular hardship while in custody, so long as his medication and regular check-ups are maintained. 20 The judge was not optimistic about the prospects of rehabilitation, having regard to the applicant's criminal history and what he described as the escalation into more serious offences as he got older. 21 The judge found special circumstances in relation to the State offence, being the accumulation of the sentences and the absence of a provision in the Commonwealth legislation setting the normal relationship between non-parole period and head sentences. 22 Counsel for the appellant submitted that there was an error in the sentence imposed on the Commonwealth offence. Section 19AC(1) of the Crimes Act 1914 (Commonwealth) requires a court, when it imposes a Federal sentence that does not exceed three years, to make a recognizance release order. That is dealt with in s 20(1)(b). However, s 19AC(4) enables the court to decline to make a recognizance release order having regard to the nature and circumstances of the offence and the person's antecedents. Section 19AH(1) provides that the failure to make a recognizance release order does not affect the validity of any sentence imposed on a person. 23 In order to tidy up the lacuna that exists, this court should decline to make a recognizance release order in respect of the Commonwealth offence. If at the hearing the judge's attention had been directed to the point, he would have declined to make a recognizance release order and given reasons for so declining. So much was, in effect, conceded by counsel for the appellant in his written submissions. 24 Rehabilitation The appellant contended that the judge had given insufficient weight to the prospects of rehabilitation and had been unduly pessimistic. One of the difficulties is that while the appellant asserts his sorrow over the commission of the offences, he did not cease to offend. His record shows that there have been lengthy periods when he was crime free. The difficulties seem to have arisen after he has become unemployed because of his back condition and his need of money. Only time will tell if he has yet learnt his lesson. Unfortunately the materials do not provide any sound basis for optimism. 25 The applicant submitted that as he had never previously committed any drug offences and as he was fifty years old when he committed them, the judge erred in his assessment of the prospects of rehabilitation. He should have found that there was some prospect. The judge did not rule out any prospects of rehabilitation but he was not persuaded that rehabilitation was likely to occur. The second drug offence, while the applicant was on bail and also his prior record in custody, did nothing to advance the applicant's case on rehabilitation. There is no substance in the complaint made as to the judge's reasons on rehabilitation. 26 Totality The applicant submitted that the judge failed to consider the appropriateness of each sentence having regard to the aggregate sentence: R v Visconti (1982) 2 NSWLR 104. Reliance was also placed on this passage in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce (1998) 194 CLR 610 at 623 to 624: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 27 The applicant also referred to Close (1993) 65 A Crim R 55 at 59 and R v Longley NSWCCA 21 April 1994 unreported and their emphasis on the principle of totality where more than one sentence is imposed and they are cumulative at least in part. It is often necessary to adjust seemingly correct individual sentences downwards so that the total of the sentences is not excessive. 28 The applicant pointed out that the judge did not refer to the principles of totality. The judge noted that the offences were of like type but totally separate. They occurred twenty-two months apart and in different circumstances. Both involved the transport of drugs by a car driven by the applicant. The judge added, "The sentences imposed will reflect the criminality involved in each matter". The question arises whether the judge has applied the principle of totality in fact, although he has not discussed it in his remarks. 29 Ii turn to the individual sentences. The State offence involves the supply of a large commercial quantity of methylamphetamine. While the quantity is substantial, it is well below the top of the range. The drugs seized had a moderate financial value. The percentage of methylamphetamine in the powder mixture was low, less than 4 per cent. 30 The applicant referred the Court to a series of cases each dealing with men of age forty-eight and above. In each instance the offender was charged with the supply of not less than the commercial quantity. The combination of facts in Heard CCA unreported 5 April 2000 was unique and that case provides no assistance for other cases. Inter alia, questions of parity and serious ill-health arose. In Watt CCA, unreported 22 March 2000 a minimum term of two years and six months with an additional term of one year six months were upheld. In Langbein CCA , unreported 29 May 2000 there were two offences, agree to supply and supply, and the sentences were concurrent. Effectively the offender was re-sentenced to a minimum term of two years and an additional term of two years. 31 Reference was made to other schedules containing analysis of cases decided in this Court, and while I have taken into account the general drift of the cases. there is no point in referring to them individually. The cases stress the importance of the quantity involved in drug cases as a prime consideration but not the only one. 32 The present case concerns the supply of a large commercial quantity of methylamphetamine where the maximum penalty is life imprisonment and the offence was committed whilst the offender was on parole for armed robbery after having served three years in gaol. Taking into account all that can be said on behalf of the applicant, I regard the sentence imposed both as to the head sentence and the non-parole period as being in the middle to the lower end of the permissible range. In itself the sentence imposed was not excessive especially when the goods in custody offence is taken into account. 33 As to the Commonwealth offence, the quantity involved falls into the low level trafficable quantity category. In R v Wong and Leung (1999) 48 NSWLR 340 at 360, this court suggested that the appropriate head sentence for such an offence ranged from five to seven years. The usual non-parole period varies from 60 to 60 2/3 per cent of the head sentence. Taking the bottom of the permissible range of five years and applying the bottom percentage of 60 per cent, the result is a non-parole period of three years. The guideline range did not proceed on the basis of the offence being committed while the offender was on bail for another serious drug offence. The sentence imposed by the judge for the Commonwealth offence could fairly be described as lenient. The judge could not reasonably have imposed a lesser sentence. 34 It should be noted that I have taken into account that there were special circumstances. These consist in the accumulation of the sentences and warrant the course being proposed. On any view, there is still a period of three years allowed and that should be ample to cover the special circumstances including any rehabilitation. 35 In accumulating the sentences, and in doing so in the way he did, the judge was turning his mind to what was the appropriate overall punishment. This was not a case for concurrent sentences. In these circumstances the question is whether the principle of totality requires some reduction in one or both sentences. The overall punishment of a head sentence of ten years for the two offences in the circumstances in which they were committed seems excessive and outside the permissible range. 36 I would not reduce the sentence for the Commonwealth offence. That is already at the lowest permissible point. However, I think that to give effect to the principle of totality, the sentence on the State offence should be reduced. I regard the correct total effective head sentence as being one of eight and a half years after the application of the principle of totality and the total non-parole period, if I can use that phrase, as being one of five and a half years. 37 I turn now to the third point argued, the discount for the pleas of guilty. The applicant submitted that the judge had erred in failing to quantify the discount for the pleas of guilty. Reliance was placed on R v Thompson and R v Houlton (2000) 115 A Crim R 104 encouraging judges to do so. The applicant submitted that by specifically stating the discount, the process of reasoning underlying the sentence becomes more transparent. However, a judge is not required to specify the discount allowed for pleas of guilty. The judge took into account the pleas of guilty by way of mitigation and the sentences imposed reflect that he did so. I would reject this point. 38 In reaching my view that the overall effective sentence was excessive and that it should properly be a period of eight and a half years, I have not overlooked the fact that the goods in custody offence has to be taken into account and I have done so. 39 I would therefore propose the following orders: Leave to appeal granted, appeal against the Commonwealth sentence of three years commencing on 4 May 2000 allowed and sentence quashed. In lieu thereof the applicant is sentenced in respect of the Commonwealth offence to a period of three years imprisonment dating from 26 April 2000. I decline to set a non-parole period. In respect of the State offence leave to appeal is granted. The appeal should be allowed and the sentence quashed. In lieu thereof the applicant is sentenced to imprisonment for five and a half years commencing on 26 April 2003 with a non-parole period of two and a half years commencing that day and ending on 25 October 2005. 40 DOWD J : I agree. 41 EINFELD : I also agree. 42 DOWD J : The orders will be as proposed by Smart AJ. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.