New South Wales Court of Criminal Appeal CITATION: Jason George DERON v REGINA [2006] NSWCCA 73 HEARING DATE(S): 10 March 2006 JUDGMENT OF: Spigelman CJ at 1, 27; Simpson J at 25; Johnson J at 26 EX TEMPORE JUDGMENT DATE: 03/10/2006 DECISION: 1 Leave to appeal granted; 2 Appeal dismissed. CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - Whether a sentencing judge must take into account the period of pre-sentence custody via backdating or deduction. - CRIMINAL LAW - SENTENCE APPEAL - Whether protective custody justifies difference in magnitude of co-offenders' sentences. LEGISLATION CITED: Drug Misuse and Trafficking Act: s 25(1) CASES CITED: R v Howard [2001] NSWCCA 309 PARTIES: Jason George Deron (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2159 of 2005 COUNSEL: M Johnston (Applicant) G Rowling (Respondent) SOLICITORS: Steve O'Connor (Applicant) NSW Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0542 LOWER COURT JUDICIAL OFFICER: McGuire DCJ - 5 - IN THE COURT OF CRIMINAL APPEAL 2005/2159 SPIGELMAN CJ SIMPSON J JOHNSON J Friday 10 March 2006 Jason George DERON v REGINA Judgment 1 SPIGELMAN CJ: The Applicant was charged with an offence under s25(1) of the Drug Misuse and Trafficking Act 1985 that he did between 10 October 2002 and 20 December 2002 supply a prohibited drug, namely heroin. He pleaded not guilty. He was convicted after a nine day trial. He was sentenced by McGuire DCJ to imprisonment for 4 years and 10 months commencing 21 March 2005 with a non-parole period of 3 years and 4 months. 2 Together with a co-accused, Raymond Russell, the Applicant engaged in the supply and distribution of heroin in the Lake Macquarie and Newcastle areas over a period of time. Those activities included the supply of amounts to lower level dealers and also the supply of small amounts directly to users. The conduct of the operation over a significant period of time involved planning and co-ordination. Supply occurred on numerous occasions, which were the subject of direct evidence through police undercover operations. Nothing turns on the detail. However, his Honour's conclusion, which was fully justified, was that this case involved: "… a prolonged planned, pre-meditated and persistent course of drug dealing and in total they on sold a substantial quantity of drugs. They could be described as extremely active and successful midrange dealers, participating in a commercial enterprise." 3 On the basic facts there was nothing to distinguish the Applicant's involvement in the actual operation from that of his co-offender, Russell. However, Russell pleaded guilty and was sentenced by Puckeridge DCJ to a term of imprisonment of 3 years, less a period of 91 days pre-sentence custody. His Honour set a non-parole period of 2 years less the 91 days pre-sentence custody. 4 McGuire DCJ had the remarks on sentence of Puckeridge DCJ before him. His Honour took them into account on the issue of parity. 5 There are two grounds of appeal. First, his Honour failed to make proper allowance for parity and that, in the result, the Applicant has a legitimate sense of grievance. Secondly, that his Honour failed to take fully into account the pre-sentence custody of this Applicant, which, again, contrasted with the structure of the sentence imposed on the co-offender Russell. 6 It is convenient to deal with the second ground first. The Applicant was in custody, bail having been refused from his arrest on 19 December 2002 until 9 May 2003, with the effect that he served 142 days of pre-sentence custody. In his remarks on sentence McGuire DCJ said: "In fixing sentence I have had regard to the period of approaching five months he spent in custody following his apprehension." 7 Nevertheless, when imposing the non-parole period of 3 years 4 months, his Honour commenced the sentence on 20 March 2005, i.e. the day on which the Appellant was convicted and, one assumes, bail was revoked and he was returned to custody. There was no backdating of the sentence, unlike that which occurred in the case of the co-offender Russell. 8 In my opinion, his Honour's reasons, that I have quoted, indicate that his Honour took the period of 5 months into account in determining the sentence he imposed. His Honour did not specify whether he deducted it from the non-parole period or from the parole period. This has that consequence that what appears to be a head sentence of 4 years and 10 months should be regarded as a sentence of 5 years and 3 months. That is the sentence that is appropriate to be taken into account, and contrasted with the period of 4 years and 8 months imposed on the co-offender on the parity ground of appeal. 9 There is no rule that a sentencing judge must take into account the period of pre-sentence custody by means of backdating the sentence, rather than by deducting the relevant period from the total sentence he proposes to impose. The important thing is that it be fully taken into account, and on the authorities in this Court, that it be demonstrated that it has been taken into account. 10 His Honour said that he did take it into account. In my opinion this Court should act on the basis that his Honour took it into account, as he said he would, by reducing the sentence he would otherwise have imposed. 11 The Applicant draws the Court's attention to the judgment of this Court in R v Howard [2001] NSWCCA 309. In that case there were two periods of pre-sentence custody, one of which the sentencing judge referred to and the other of which the sentencing judge had said he had taken into account. In the judgment in this Court, Wood CJ at CL, with whom Beazley JA and Sperling J agreed, said "[24] … His Honour made no mention of the first period of ten days, but expressly stated that he had taken into account the second period of one month and five days. It is, however, submitted that the sentence being expressed in round terms of seven years six months with a non parole period of five years six months, it did not demonstrate any such allowance, since one might reasonably have expected that it would either have been backdated, as is permissible … or to have been reduced at the other end. [25] It is not clear why the two periods of pre-sentence custody were not demonstrably reflected in the sentencing order …" 12 There are two things to say about this passage relied upon by the Applicant. First, Wood CJ at CL indicates clearly that it was open to the Court to either backdate the sentence or to reduce the sentence that would otherwise have been imposed. Secondly, the relevant test is whether or not the pre-sentence in custody had been "demonstrably reflected in the sentencing order." In that case the failure to backdate by an odd period of days, namely 1 month and 5 days for the second period and a period of 10 days for the first period, was such as to indicate that his Honour had failed to take the matter into account. 13 In the present case what his Honour did was in some respects, the obverse of what happened in Howard. Rather than rounding down the sentence to be imposed, what his Honour did, and said he was doing, was to round up the period of pre-sentence custody. As I have quoted above, his Honour said that the pre-sentence custody was a "period of approaching five months." That was so. It was a period of 4 months and 22 days. His Honour rounded it up to 5 months. 14 Accordingly, the conclusion that was available in the case of Howard, that his Honour had not demonstrably reflected the pre-sentence custody in the sentence finally imposed, cannot be said to be true in this case. His Honour did some rounding it is true, but the rounding was favourable to the Applicant and is no basis for a complaint. Accordingly, in my opinion, this ground of appeal should be rejected. 15 By reason of the above analysis, the second ground of appeal, on the question of parity, has to be assessed on the basis that his Honour in fact imposed an effective sentence of 5 years and 3 months on the Applicant. 16 There was a material difference between the two co-offenders in that Russell pleaded guilty. Puckeridge DCJ commenced by identifying an appropriate head sentence of 4 years and 8 months imprisonment, from which he deducted 25 percent for the utilitarian value of the plea. This starting point of 4 years and 8 months contrasts with the starting point of, effectively, 5 years and 3 months in the case of the Applicant. 17 The issue before this Court is whether or not a differentiation of 7 months, with appropriate reflection in the non-parole periods, was open to his Honour in the exercise of the discretion within the application of the principle of parity. 18 McGuire DCJ compared the two offenders in the following passage: "His co-offender Russell, with whom he was engaged in a joint criminal enterprise, pleaded guilty at the earliest opportunity before Judge Puckeridge and was granted a twenty-five percent discount by reason thereof. The prisoner attracts no such consideration. Russell's record could be roughly equated with that of the prisoner albeit that it was lengthier and reflected sentences, imposed many years ago. Judge Puckeridge in fixing Russell's sentence took into account that he was in protective custody in relation to an unrelated matter and that he would continue under protection. Apparently he assisted the Crown with regard to a prosecution for murder. His Honour also took into account matters on a form one, however, there is no such schedule in this matter." 19 The submissions on behalf of the Applicant were that this 7 month difference in the starting point between the two sentences was inappropriate on parity grounds. 20 His Honour referred to three factors which differentiated the two cases. First, there were offences on the Form 1, in the case of Russell. This would suggest the difference should be less rather than more. The other two matters worked in the other direction. Second, was the protective custody in which Russell would have to spend his imprisonment and, third, was the assistance with regard to a prosecution for murder that Russell had given. 21 Mr Johnston, counsel for the Applicant, has submitted to the Court that the passage of his Honour's reasons which I have quoted, and in which he refers to the assistance of the Crown, was mentioned by his Honour by way of explanation for why Russell has served his period in protective custody and would continue under protection. 22 This submission appears to me to have some force. On this basis, the critical differentiation is the protective custody in which Russell will have to spend the entire period of his imprisonment. In my opinion, this consideration does justify a difference of the order of magnitude of 7 months which McGuire DCJ determined to be appropriate in this case. 23 This is a Court of error. The issue for this Court is whether the particular factor which his Honour expressed to have taken into account, within the legitimate range of the exercise of sentencing discretion, justified the differentiation to which his Honour eventually came. In my opinion it was within that legitimate range. Accordingly, the ground of appeal based on parity considerations should be rejected. 24 The orders of the Court that I propose are that leave to appeal be granted but the appeal be dismissed. 25 SIMPSON J: I agree. 26 JOHNSON J: I also agree. 27 SPIGELMAN CJ: The orders are as I have indicated. ********** 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. 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