Reported Decision : 125 A Crim R 1 New South Wales Court of Criminal Appeal CITATION : Regina v Parkinson [2001] NSWCCA 244 revised - 5/07/2001 FILE NUMBER(S) : CCA 60061/01 HEARING DATE(S) : 27/06/01 JUDGMENT DATE : 27 June 2001 PARTIES : Regina v John Parkinson JUDGMENT OF : Barr J at 38; Howie J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1151 LOWER COURT JUDICIAL Bellear DCJ OFFICER : COUNSEL : M.C. Grogan - Crown C.B. Craigie - Applicant SOLICITORS : S.E. O'Connor - Crown King Lawyers - Applicant CATCHWORDS : Criminal law - Sentence - discount for early plea - accumulation of sentences - totality Justices Act 1902 - s 51A LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 - ss 24, 25(1), 25(2) Firearms Act 1996 - s 36(1) Crimes (Sentencing Procedure) Act 1999 - ss 23, 44 CASES CITED: R v Thompson and Houlton (2000) 49 NSWLR 383 R v GDR (1994) 35 NSWLR 376 DECISION : See para 36 IN THE COURT OF CRIMINAL APPEAL 60061/02 BARR J HOWIE J WEDNESDAY 27 June 2001 REGINA v JOHN EDWARD PARKINSON JUDGMENT 1 HOWIE J: The applicant John Edward Parkinson seeks leave to appeal against sentences imposed by Judge Bellear DCJ on 2 February 2001 for a number of drug and firearm offences. The applicant had pleaded guilty to these charges before a magistrate and was committed for sentence to the District Court under s 51A of the Justices Act. However, by reason of some defect in the committal document, an indictment was presented before the District Court containing the same charges to which the applicant had pleaded guilty before the magistrate and on being arraigned on that indictment the applicant again pleaded guilty. 2 The indictment contained six counts, five of them were offences concerning the supply and manufacture of amphetamine contrary to the provisions of the Drug Misuse and Trafficking Act. The counts on the indictment and the amount of drugs to which they relate are as follows: 1. 28 October 1999 - Supply 54.8 grams of methylamphetamine. 2. 7 February 2000 - Supply 53.2 grams of methylamphetamine. 3. 17 March 2000 - Supply 44 grams of methylamphetamine in that he had that drug in his possession for the purposes of supply. 4. 17 March 2000 - Supply 988.2 grams of methylamphetamine being not less than the commercial quantity of that drug. 5. 17 March 2000 - Knowingly take part in the manufacture of amphetamine. 3 The first three counts on the indictment were all contrary to s 25(1) of the Drug Misuse and Trafficking Act and carried a maximum penalty of 15 years imprisonment. The fourth count was contrary to s 25(2) of the Act by reason of the amount of drug involved and carried a maximum penalty of 20 years imprisonment. The fifth count was contrary to s 24 of the Act and carried a maximum penalty of 15 years imprisonment. 4 The sixth count on the indictment alleged that on 7 December 1999 the applicant sold an unregistered firearm, being a .45 calibre semi-automatic pistol, contrary to s 36(1) of the Firearms Act 1996. The maximum penalty prescribed is 5 years imprisonment. 5 In addition to these offences the applicant asked his Honour to take into account a further seven matters on a Form 1 under the provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999. These matters were: three offences of supply amphetamine; one count of supply a .45 calibre semi-automatic pistol; goods in custody of $2,000 in cash; possession of 2 grams of cannabis and possession of a .45 calibre semi-automatic pistol. The dates of these matters all fell within the period covered by the offences on the indictment. 6 Judge Bellear sentenced the applicant as follows: in respect of count 4 and taking into account the matters on the Form 1 imprisonment for 6 years and 2 months with a non-parole period of 4 years and 7 months to date from 17 March 2000 with the non-parole period to expire on 16 October 2004; in respect of each of the first three counts and count 5,imprisonment for 3 years and 2 months with a non-parole period of 2 years and 4 months, all to date from 17 March 2000 and the non-parole periods to expire on 16 July 2002; in respect of count 6 imprisonment for 17 months with a non-parole period of 12 months to commence at the expiration of the non-parole period imposed in respect of count 4. 7 As a consequence of these individual sentences, the applicant was sentenced to a total sentence of 6 years and 2 months with an effective non-parole period of 5 years and 7 months from 17 March 2000. The applicant is eligible to be considered for release to parole on 16 October 2005. The total sentence is to expire on 16 May 2006. 8 There are four grounds of appeal as follows: "1. The applicant submits that the discount of 5 % for the plea of guilty was inadequate in the circumstances of an early plea. 2. The applicant submits that the learned sentencing judge erred in not considering the issue of circumstances, particularly in the light of the accumulation of the sentence in respect of count 6. 3. The applicant submits that the learned sentencing judge erred in not properly assessing the issue of totality as it arose from a multiplicity of sentences which are in part accumulated. 4. Both the head sentence and non-parole period are manifestly excessive." 9 The facts of the matter can be briefly stated. The police suspected that the applicant and another man, who were both members of the Life and Death Motor Cycle Club, were engaged in the supply of amphetamine. In a controlled investigation undercover operatives were used to target the applicant and the other man by acting as purchasers of the drug. The operation resulted in the arrest and charging of the applicant with the offences for which he was sentenced by Judge Bellear. Both the drug offences and the firearms offences arose in the course of the contact between the undercover operatives and the applicant, and from what was found in the possession of the applicant when his premises were searched by police after his arrest. 10 The first count of supply related to the exchange of 54.8 grams of amphetamine for two compliance plates from a motor vehicle which is said to be valued at $2,000. Although the normal street purity of amphetamine is said to be 3-4%, the purity of the drug the subject of this charge was 7% and, therefore, the drug could be cut down by some other substance to produce 118 grams of amphetamine which could be resold at street level. 11 The second count related to the sale of 53.2 grams of amphetamine for the price of $6,400. The increased price paid for the drug on this occasion was because of its increased purity. The drug was 38% pure which meant that it could be cut seven times to give 371 grams of amphetamine which could be sold at street level. 12 The third count concerned the discovery of amphetamine in the possession of the applicant after his arrest. That drug was 44% pure resulting in 396 grams of normal grade amphetamine. 13 The fourth count related to the supply of 988.2 grams of amphetamine for $24,000. This drug was 8% pure and could have been converted into 1976 grams of street level amphetamine. In total the applicant had supplied to police or had in his possession what amounted to 2,851 grams of street level amphetamine. 14 The fifth count in the indictment related to the fact that on 17 March 2000, following his arrest after the supply which was the subject of the fourth count, the applicant's house was searched and in the laundry a container was found in which was 400 grams of liquid with a white sediment. This finding revealed that the applicant was in the course of extracting pseudoephedrine as part of the manufacture of amphetamine. 15 The sixth count on the indictment related to the sale by the applicant of a semi automatic pistol to an undercover police officer for the sum of $2,500. 16 The supply offences on the Form 1 involved three separate supplies of about 26 grams of amphetamine each at a cost of $3,500. The sale of the automatic pistol netted the applicant $2,500. Another pistol was found in the applicant's kitchen wrapped in cloth. The $2,000 found by police in the applicant's home was believed to be the proceeds of previous drug supplies. 17 A submission was made to his Honour that the sentence ought to be discounted by reason of the fact that during the course of negotiations between the applicant and the undercover police officer, the applicant had been "talked up" to the large amount supplied on 17 March. Judge Bellear determined that no such discount was appropriate on that basis and that finding has not been challenged in this Court. 18 The applicant is aged 37 years. He has no prior convictions. He is in a good relationship with members of his own family and receives strong support from his mother. The applicant has two sons from a previous relationship, one of whom is aged 10 years and has severe developmental and behavioural problems. He is under the care of a psychiatrist and schizophrenia is suspected as the cause of his problems. The applicant has regular contact with his former partner and the children. 19 The applicant had an unremarkable upbringing, except that after his father left them, the family became itinerant. The applicant left school at the age of 14 years. He was until August 1999 working as a crane driver, often up to seven days a week. Unfortunately the applicant was involved in a motor vehicle accident from which he suffered serious injuries which precluded him from continuing with his former occupation. The applicant, thereafter has been unemployed. He told a psychologist, who prepared a report for the sentencing proceedings, that he was in constant pain as a result of the accident. He has never used illegal drugs. 20 In the pre-sentence report the following paragraph is found under the heading "Attitude to the Offence": "The offender appears to see the offence as a business transaction, a means of obtaining money following his accident when he was not able to return to his employment as a crane driver. He describes his part in the offences as 'the courier'. He claims his partner who was drug addicted and needing money, encouraged him to engage in these illegal activities and was instrumental in introducing him to the people who provided the goods. Mr Parkinson was very matter of fact when discussing the offences and did not seem to appreciate the illegality or anti-social nature of his actions." 21 The first ground of appeal is that his Honour erred in relation to the discount granted to the applicant for his pleas of guilty. In sentencing the applicant, Judge Bellear noted that he had pleaded guilty in the Local Court to these offences and referred to a submission made by counsel appearing for the applicant that he was entitled to the benefit of his early pleas in accordance with the guideline judgment of this Court in R v Thompson and Houlton (2000) 49 NSWLR 383. In his remarks on sentence His Honour said: "I am satisfied that the prisoner's pleas of guilty were entered at the earliest available opportunity. I am satisfied that those pleas were entered in the face of an extremely strong case. I do accept however that the enormous money and time saved by this state that would have been spent had this prisoner stood his trial in each matter that must warrant some leniency." 22 Judge Bellear determined that the appropriate discount was 5 per cent for the utilitarian benefit of the pleas on the basis that the Crown case was a strong one and that there was an inevitability about the conviction of the applicant which could not be avoided. His Honour found that the applicant was not entitled to any benefit on the basis of remorse. He noted that the applicant had failed to assist the authorities regarding other members of the motor cycle club and the seriousness of the offences. 23 In my respectful opinion his Honour was clearly in error in the way he approached the determination of the discount for the utilitarian benefit of the pleas of guilty. The range of the discount appropriate for this factor was held in Thompson and Houlton to fall between 10-25 per cent, the primary consideration for determining the extent of the discount being the timing of the plea. After referring to the fact that the actual discount to be given will be a matter for the discretion of the sentencing judge, the Chief Justice said this about the factors to be taken into account when determining the discount at 428 para 154-155: "There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options." 24 Judge Bellear seems to have determined that a discount of 5 per cent should apply notwithstanding that the pleas were entered at the first opportunity and resulted in a real saving in time and money to the state, because of the overwhelming strength of the Crown case resulting from the taped conversations between the applicant and the undercover officers. But that was not a relevant consideration in determining the extent of the discount on a purely utilitarian basis. In Thompson and Houlton, the Chief Justice said at 416 para 137-138: "Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564. In Winchester v The Queen , Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): "… The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable." In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea. 25 In my opinion there was no ground upon which the applicant should have been deprived of the full measure of the discount for his early pleas. This ground of appeal has been made out. 26 The other grounds of appeal have been argued together and in effect contend that by accumulating the sentence for the fourth and sixth counts his Honour imposed a sentence which was more severe than was appropriate to reflect the totality of the criminality and, further, by taking that course his Honour failed to set an appropriate ratio between the full term of the sentences and the period to be served by the applicant before being eligible for release to parole. It is submitted on behalf of the applicant that an overall non-parole period of 5 years 7 months in a total sentence of 6 years 2 months is manifestly excessive. 27 In my opinion there are errors in the way his Honour determined and structured the sentences. There were three separate, though related, acts of criminality arising from the facts before his Honour: the course of supplying amphetamine, the applicant's involvement in the manufacture of that drug, and the sale of the firearm. His Honour perceived that the first and third of those matters needed to be dealt with separately but not the second. The manufacturing of amphetamine was quite separate from the supply offences because it related to amphetamine for future distribution whether by the applicant or some other person. Each of those three areas of criminality required separate and distinct punishment which should have resulted in cumulative sentences for each of the fourth, fifth and sixth counts. The offence of taking part in the manufacture of amphetamine was dealt with by a sentence of 3 years and 2 months made concurrent with the offences of supply amphetamine. This was in my opinion an inappropriate way of dealing with that matter. 28 Further, the starting sentence chosen by his Honour to reflect the commercial supply of amphetamine and the matters on the Form 1 was 6½ years which his Honour discounted by 5 percent. The sentence of 6 years and 2 months thereby obtained was in my view barely appropriate to reflect the objective seriousness of the totality of the supplies of amphetamine and the manufacture of the amphetamine but it was so only because his Honour discounted it by such a small amount. If a 25 per cent discount were now applied to the sentence which his Honour initially chose for the offences in the first five counts before discount, a sentence of 4 years and 10 months would result. Having regard to the criminality involved, such a sentence needs only to be stated for it to be seen as inadequate. 29 The sentence chosen by his Honour to reflect the firearm offence was 17 months after the application for the 5 per cent discount, so that the obvious starting sentence was 18 months. If a 25 per cent discount were given off that sentence the result would be just over 13 months. Such a sentence would in my view be inadequate to deal with a case of a person selling a firearm to another who the seller believed to be a drug supplier. 30 Further, it seems clear to me that his Honour did not achieve the result he intended by the accumulation of that sentence. I believe that, with respect, His Honour must have overlooked the fact that the total term as well as the non-parole period would commence at the expiration of the non-parole period on the fourth count. Otherwise there seems to have been no point of going through the exercise of creating parole periods in accordance with the Act for each of the sentences and then imposing a cumulative sentence which all but obliterated the parole period earlier specified. 31 If his Honour intended, as I believe he did, to lengthen both the total term of the sentence and the period the applicant was to serve in custody before being eligible to release to parole by accumulating a sentence for the firearm offence in the sixth count, the only way he could achieve that result was to impose that sentence before the sentence for the fourth count and accumulate that count on the sentence for the sixth. 32 The Crown has argued that his Honour was entitled to fix sentences and non-parole periods giving the result achieved by the sentences he imposed. There is no doubt that submission is correct, see R v GDR (1994) 35 NSWLR 376. Further, s 44 of the Act refers only to the relationship between the non-parole period and the term of a particular sentence: it says nothing about the result of the cumulation of sentences. But the general policy relating to the specification of parole periods is that there should be a due relationship between the non-parole period and the total term and that this relationship will generally be in accordance with that specified in s 44. 33 It is difficult to see what is to be achieved by a 7 month parole period after the prisoner, who has no prior convictions, has served a sentence of 5 years and 7 months. Although there may be no need for supervision or assistance at the present time, it could not confidently be predicted that the same situation would apply after so long in custody. Such a short parole period after such a lengthy period in gaol gives the applicant little incentive to earn parole or little time for the parole service to provide him with assistance to re-establish himself once released. 34 Although there was no requirement for his Honour to give reasons for fixing such a proportion between the non-parole period and the total term, it is so exceptional, particularly in the case of a person with no prior convictions and who would not be considered a danger to society, that I would have thought some explanation or justification for such a sentence would be found in his Honour's reasons if he intended that result. This is particularly so in light of the fact that his Honour set non-parole periods bearing the usual relationship to the term of the sentence in respect of each sentence imposed. 35 Unfortunately the sentencing exercise seems to have miscarried by reason of the failure to give an appropriate discount and in the way the sentences were structured. But to rectify the situation would require a re-sentencing of the applicant which would require longer sentences to be imposed in order that the proper sentencing principles could be applied and an appropriate sentence achieved. That cannot be done on the applicant's appeal. The sentence I propose is not the sentence that should have been imposed but seems to me to do some justice to the applicant and the community. 36 I propose that the sentence for the sixth count be quashed and in lieu the applicant be sentenced to a fixed term of 18 months to commence on 17 March 2000 and to expire 16 September 2001. The sentence is to be a fixed term because of the sentence to be imposed on the fourth count. The sentence for the fourth count should be quashed and in lieu the applicant be sentenced to 5 years and 8 months to commence on 16 September 2000 with a non-parole of 4 years and 2 months which is to expire on 15 November 2004 the date upon which the applicant is to be eligible for release to parole. 37 I wish to make it clear that the total sentence which I have proposed is unduly lenient and verging on the inadequate, but has been brought about in order to permit the applicant to see that he has received some benefit for his pleas and to encourage him to work for parole and to assist him when he is released. He has not received the full measure of the benefit he should have received in terms of the percentage discount because to do so would result in a grossly inadequate sentence if this Court did not substantially increase the sentences imposed by Judge Bellear. But in effect he has received the full benefit of the pleas before the magistrate because the sentence now imposed is the very least that could have been imposed even giving him the fullest measure of discount for his pleas of guilty. 38 BARR J: I agree. The orders of the Court are therefore as proposed by Justice Howie. ************ 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.