New South Wales Court of Criminal Appeal CITATION: R v Sonter [2005] NSWCCA 458 HEARING DATE(S): 6 December 2005 JUDGMENT DATE: 6 December 2005 JUDGMENT OF: Grove J at 1; Studdert J at 31; Whealy J at 32 DECISION: APPEAL ALLOWED IN PART; SENTENCE VARIED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES - ERRONEOUS DATE IN DOCUMENTATION SUPPLIED TO JUDGE - CONSEQUENT REDUCED PROPORTION OF PAROLE TO CUSTODIAL PERIOD - ADJUSTMENT APPROPRIATE - OTHERWISE NO SPECIAL MATTER OF PRINCIPLE LEGISLATION CITED: s 21A Crimes (Sentencing Procedure) Act 1999 R v Blair [2005] NSWCCA 78 R v Simpson 2001 53 NSWLR 704 CASES CITED: R v Veen (No 2) 1988 164 CLR 465 R v Williams [2004] NSWCCA 76 PARTIES: Regina v Michael John Sonter FILE NUMBER(S): CCA 2005/1457 T. Game SC (Applicant) COUNSEL: J. Dwyer (Respondent/Crown) C. Jeffreys, Jeffreys & Associates (Applicant) SOLICITORS: S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/1094 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1457 GROVE J STUDDERT J WHEALY J 6 December 2005 REGINA v MICHAEL JOHN SONTER Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Geraghty DCJ at Penrith District Court. The applicant was committed for sentence from the Local Court following pleas of guilty to counts of being armed with intent to commit an indictable offence, for which a prescribed maximum penalty of seven years imprisonment was applicable, and an ongoing supply of prohibited drug, methylamphetamine, for which imprisonment for twenty years and possible fine is prescribed. 2 His Honour was asked to take into account pursuant to the Form 1 procedure a further eleven charges. These consisted of seven further offences of supplying methylamphetamine which took place between 10 July and 5 November 2003, possessing a shortened firearm, possessing ammunition and not keeping a firearm safe, on 3 July 2003, and possession of cannabis on 3 July 2003. 3 It should be noted that the Form 1 signed by the applicant has what would appear to be typing errors in that the stated date of the offences of not keeping the firearm safe and possession of prohibited drug, cannabis, is 3 July 2004 whereas it should read and be taken to read 3 July 2003. 4 It is conceivable, I would say likely, that this mistake is the source of an erroneous observation by his Honour upon which reliance is placed by the applicant in support of his challenge to sentence. There is not any apparent connection, in a relevant sense, between the two principal offences charged. The facts were placed before the sentencing court in an agreed statement. 5 Senior counsel for the applicant has, with his usual candour, acknowledged that the seriousness of the offending is not disputed. 6 The first count had its origin on 22 June 2003 when the applicant sought the assistance of one Coleman whose motor vehicle he wished to use in the commission of the robbery of the payroll of a particular business. On 25 June Coleman reported the plan to police. An authority was granted for conducting a controlled operation. Surveillance was undertaken and eventually, on 3 July 2003, Coleman and the applicant set off with a bag and shortened rifle which the applicant had placed in the boot of the vehicle. 7 The journey was, however, interrupted by the car being stopped by some police who were then unaware of the controlled operation. Those police were contacted and the applicant and Coleman permitted to proceed. However, the applicant, at least for that day, abandoned the plan and returned home. 8 In the afternoon of 3 July a search warrant was executed at the applicant's residence. He was arrested and interviewed. He denied relevant knowledge but was charged with the offences of possession of a shortened firearm, not keeping it safe, possession of ammunition and possession of the cannabis. 9 Released to bail, the applicant committed the first offence on the Form 1 of supplying methylamphetamine on 10 July 2003. On that day a person was arrested, after leaving the applicant's residence, for having possession of two grams of methylamphetamine. He was interviewed and later, on 13 August 2003, authority was given for a controlled operation whereby a police undercover operative, referred to as Ben, would seek to purchase illicit drugs from the applicant and/or his partner Dorothy Jones. 10 On 26 September, 8 October and 20 October, 2003 Ben paid the applicant cash in the amount of $1,100 on each occasion. Upon receipt of these payments, the applicant left Ben and, on return, supplied various amounts of methylamphetamine. These are the supplies which are within the span of 30 days constituting the offence of ongoing supply charged in the second count. 11 The Form 1 includes admissions of supplying amounts up to 5 November 2003. It happens that on that date Ben handed the applicant $1,150 and received in return, after a short absence of the applicant, 25 grams of methylamphetamine. The police arrested the applicant and he has been in custody since that date. He was found to have $550 in his possession which led to the conclusion that he was buying the supply from someone else and making a profit of one hundred percent for the on selling, or looked at another way, splitting fifty/fifty with the supplier to him. 12 Judge Geraghty sentenced the applicant on the first count of being armed with intent to commit an indictable offence with a sentence to imprisonment for two years six months, commencing on 5 November 2003, with a non parole period of two years from that date. That non parole period therefore expired on 4 November 2005. 13 Taking into account the matters on the Form 1, his Honour sentenced the applicant on count two to imprisonment for five years commencing on 9 December 2004, with a non parole period of four years commencing on that day which will expire on 8 December 2008. This constituted an overall effective sentence to imprisonment for six years, one month and three days, with a non parole period of five years, one month and three days. 14 What might appear, prima facie, as a somewhat curious result is explained when it is observed that the learned judge imposed the sentence on 9 December 2004 and determined that the "custody already for thirteen months" - in fact, thirteen months and four days - was sufficient cumulative effect for the first and second counts. This seemingly advantaged the applicant in that it followed rejection of a Crown submission that the discrete offences should be met by wholly cumulative impositions. 15 It cannot be known what assessment his Honour might have made if he had accepted the Crown submission, but on that assessment there would have been terms to be entirely cumulative but he would also have needed to turn his mind to totality. 16 The applicant argues three contentions of identifiable specific error. The first is a factual error referable, one would be minded to think, to his Honour having been misled by the wrong year date specified in respect of the eleventh charge on the Form 1. Twice in his remarks on sentence he referred to the supply of methylamphetamine as being over a period of a year. At one point he mentioned 10 July 2003 to 3 July 2004. As I have mentioned, the latter date was erroneously endorsed on the Form 1. 17 The date of charge numbered eleven, which in fact concerned possession of cannabis rather than methylamphetamine, it is agreed by the parties, should be 3 July 2003. 18 The span of time of methylamphetamine supply extended over a period from 10 July 2003 until the arrest on 5 November 2003. However, it is necessary to pay attention to the three occasions which I have specified in order to constitute the offence charged and take into account the other matters on the Form 1 when one comes to sentence. This maybe an awkward approach but it is recognised that that is requisite in the light of legislative requirements. 19 The second error is focused upon the explicit taking into account of what his Honour correctly described as the applicant's extensive and significant record of previous convictions as an aggravating factor as he sought to apply provisions in section 21A of the Crimes (Sentencing Procedure) Act 1999. Such an error has been so often identified in other cases that I need not pause to, once again, describe how it comes about. 20 It suffices to record reference to R v Williams [2004] NSWCCA 76 and R v Blair [2005] NSWCCA 78. 21 The third ground is sought to be supported by reference to the arithmetical calculation of proportion of non parole period to total sentence. The non parole period represents 83.5 percent of the total term. The thrust of the submission is that the period of potentially twelve months parole after service of over five years in custody is an insufficient appropriate period for supervised release. 22 It is accepted that his Honour found no special circumstances for which there should be an adjustment of proportion in favour of the applicant and that finding is not challenged. However, neither did his Honour expressly advert to the consequence that his imprisonment resulted in a proportion to the disadvantage of the applicant which exceeded the statutory formula. 23 The identification of error does not, of itself, give rise to necessary intervention by this Court. The situation was the subject of reminder by the Chief Justice in R v Simpson (2001) 53 NSWLR 704 at page 720 when he said: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence …. is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied". 24 The essential question, as I see it, is whether in this case the pre-condition has been fulfilled. The error of fact concerning the span of time revealed in his Honour's statement is not one which I consider should attract the intervention of this Court. 25 It is noteworthy that there is no claimed error in the perception of the number of individual dealings actually involved. 26 Neither would I propose intervention in connection with the description of the prior record of the applicant as a matter of aggravation. Although I would not conclude that retribution, deterrence and protection of society required a severer sentence, as submitted by the Crown in, for example, R v Veen (No 2) (1988) 164 CLR 465, I do not perceive that, allowing that the prior record would inhibit claims to leniency, his Honour's assessments are outside the range of sound discretionary exercise. 27 However, his Honour assessed the applicant's prospects of rehabilitation as poor and that was a finding clearly open on the material. Nevertheless, he did not appear to make any assessment of the appropriate period which might reflect the applicant succeeding in undertaking a lawful life when returned to society. 28 After full time imprisonment of about five years, a period of twelve months supervised parole, in my opinion, manifests inadequacy for that purpose. That period of twelve months emerged from the sentence on the supply offence being simply divided into four years minimum and one year parole which, independently of the partial accumulation, provides a custodial period of eight percent of the whole term. 29 I conclude that there should be an adjustment to bring the division into approximate line with the statutory proportion and thereby make available for the applicant greater opportunity for successful parole. I propose to round the figure slightly in favour of the applicant. 30 I propose the following orders 1. The application for leave to appeal against sentence granted and the appeal allowed in part. 2. The sentence for on going supply of prohibited drug is quashed, and in lieu thereof, taking into account the offences on Form 1, the applicant sentenced for that offence to imprisonment consisting of a non parole period of three years five months, commencing on 9 December 2004 and expiring on 8 May 2008, and a non parole period of one year seven months, commencing on 9 May 2008. The earliest date of eligibility for consideration of parole is specified as 9 May 2008. 31 STUDDERT J: I agree. 32 WHEALY J: I agree. 33 GROVE J: The orders of the court will be, therefore, as I have proposed. In effect the release date comes back from December 2008 to May 2008. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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