SCICLUNA v R [2008] NSWCCA 24

Reported Decision: 181 A Crim R 133

New South Wales Court of Criminal Appeal

CITATION: SCICLUNA v R [2008] NSWCCA 24

HEARING DATE(S): 11 December 2007

JUDGMENT DATE: 19 February 2008

JUDGMENT OF: Basten JA at 1; Barr J at 16; Adams J at 17

DECISION: (By majority) Leave to appeal against sentence is refused

CATCHWORDS: Sentence appeal - parity - co-offender's sentence suspended to undertake Drug Court programme - whether relevant comparison.

Crimes and Courts Legislation Amendment Act 2006 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s45(2) Drug Court Act 1998 ss7(3), 12

Ersman (2007) 171 A Crim R 560 Lowe v The Queen (1984) 154 CLR 606 CASES CITED : Postiglione v The Queen (1997) 189 CLR 29 R v Boney [2001] NSWCCA 432 R v Rice [2004] NSWCCA 384; (2004) 150 A Crim R 37 R v Steel (NSW CCA 17 April 1997) per Simpson J

PARTIES: Stephen Joseph SCICLUNA REGINA

FILE NUMBER(S): CCA 2006/5146

COUNSEL: Mr D Marr (Applicant) Mr M Barr (Respondent)

SOLICITORS: David Lock (Applicant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0036

LOWER COURT JUDICIAL OFFICER: H Morgan DCJ

LOWER COURT DATE OF DECISION: 22.09.06

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5146

BASTEN JA BARR J ADAMS J

19 February 2008 Stephen Joseph SCICLUNA v R Judgment 1 BASTEN JA: As explained by Adams J, the issue on which this application for leave to appeal ultimately turns is an apparent disparity between the sentence imposed on the applicant and that imposed on his co-offender, Mr Haynes. With respect to the relevant offence, committed on 17 January 2003, the applicant was sentenced by Morgan DCJ to a period of imprisonment of four years with a non-parole period of two years. Her Honour imposed that sentence on 22 September 2006, some three and a half years after the offence in question. The imprisonment is, however, to commence on 26 April 2008, due to the accumulation of the sentence upon other sentences being served by the applicant. 2 The co-offender had been sentenced by Milson DCJ in the Drug Court on 5 June 2003. On that occasion, Mr Haynes was sentenced for three similar offences, two of which preceded the offence involving the applicant, those having been committed in November 2002. For reasons which are not fully explained, Mr Haynes was sentenced to a period of 18 months in respect of the first offence and concurrent sentences of two years and three months in respect of the second and third offences, such sentences to be cumulative upon the 18 month period. In order to understand the nature of the comparison relied upon, it is necessary to set out the relevant paragraph of the judgment of Milson DJC in relation to Mr Haynes, which was to the following effect: "For all of those reasons, in respect of the first offence on indictment, he is convicted and sentenced to be imprisoned for a period of 18 months. In respect of each of the remaining matters, he is convicted, and the appropriate penalty in each case would be concurrent periods of two years and three months, which is reduced by the time he has been in custody, to a period two years, one month and one week, and were the sentences being served today, that latter period would be served at the completion of the 18 months." 3 Because there was no attempt to fix a non-parole period, or to give reasons for not taking that step, it must be assumed that each sentence constituted a fixed term sentence: see Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), s 45(2), in relation to reasons for declining to set a non-parole period. The reference to the sentences being "served today" was a reference to the fact that, where a person was ordered by the Drug Court to take part in a relevant program, the Court was required to suspend the execution of the sentence for the duration of the person's program: Drug Court Act 1998 (NSW), s 7(3). (It is convenient to refer to this practice in the past tense because, as will appear below, it was later held to be an incorrect practice under the law as it then stood; however, subsequent statutory amendments have provided support for the practice reflected in the approach taken to Mr Haynes in 2003.) 4 Although the Drug Court did not explain its procedure in these terms, it is common ground on this application that the Court proceeded in relation to Mr Haynes under s 7 of the Drug Court Act, he being a person who had been referred to it under s 6 of that Act and who had pleaded guilty to the relevant offences. That being so, the Drug Court was required to sentence him in accordance with the Sentencing Procedure Act: see Drug Court Act, s 7(2A). That s 7(2A) meant what it said, was articulated in clear terms by this Court in R v Rice [2004] NSWCCA 384; (2004) 150 A Crim R 37 at [101]-[104] by Smart AJ, Hodgson JA and Hume J agreeing. However that decision was delivered on 10 November 2004, well after the sentencing of Mr Haynes on 5 June 2003. In accordance with what appears to have been common practice in the Drug Court prior to Rice, not all relevant circumstances were taken into account in sentencing pursuant to s 7 of the Drug Court Act and requirements of the Sentencing Procedure Act, including s 44 in relation to the fixing of a non-parole period, were commonly not followed. That course was adopted, at least in past, because the Drug Court Act provided that on termination of an offender's program, the Court must consider the offender's "initial sentence" and may adjust it, taking into consideration certain matters which had succeeded the initial sentencing, including his or her participation in the program. The Court was then to determine a "final sentence" which might involve an order confirming or setting aside the initial sentence and imposing a final sentence not greater than the initial sentence: Drug Court Act, s 12. In particular, the practice was justified on the basis that the subjective circumstances of the offender, which were likely to mitigate the seriousness of the offence and the severity of the sentence, would be better appreciated after the program and would thus better be taken into account in imposing a "final sentence". Whether or not these practical considerations were sound, they did not conform to the statutory scheme, as pointed out in Rice. 5 It follows from these considerations that it is difficult to make a satisfactory comparison between the sentence imposed by Milson DCJ in relation to the co-offender Haynes and that imposed by Morgan DCJ on the applicant. No doubt the fixed term specified by the Drug Court for Mr Haynes may be compared with a non-parole period, in which case it may be seen that, subject to the curious direction that the sentence should be wholly concurrent with an equal sentence for an independent offence, Mr Haynes received a longer period (two years three months) than did the applicant (two years). On that approach, applying s 44 of the Sentencing Procedure Act, one may infer that the total sentence which would have been appropriate in relation to Mr Haynes was one-third longer than the fixed term, namely three years. That term, it was contended, was significantly shorter than that imposed on the applicant (four years) and gave rise to a justifiable sense of grievance, of the kind identified in Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ), 613-614 (Mason J), 617 (Brennan J) and 623 (Dawson J with whom Wilson J agreed). That conclusion assumes that Milson DCJ, had he been sentencing in accordance with s 44 of the Sentencing Procedure Act, would not have considered that special circumstances applied in relation to Mr Haynes, thus justifying a greater disparity between the non-parole period and the total sentence. These are, however, matters of speculation. Further, as explained by Adams J, there were significant differences between the circumstances of Mr Haynes and the applicant which would have prevented the principle of parity giving rise to precise equality. 6 Counsel for the applicant further argued that a significant aspect of the putative disparity arose from the fact that, having completed a program under the Drug Court Act, the final sentence imposed on Mr Haynes involved a 12-month good behaviour bond. Mr Haynes apparently spent two years and eight months on the Drug Court program, but did not "graduate" because he had continued to use drugs: Judgment, Barnett DCJ, Drug Court, 17 February 2006, p 5. The Court noted that during the program he had developed "dependence on heroin" but had not "re-offended": pp 4 and 5. He was also said to have "mental health issues", the details of which were not revealed. 7 In any event, even if that which happened after sentence were relevant, which may be doubted, this Court was told that the final sentence judgment was not before her Honour, although her Honour knew that a 12 month bond had been imposed on 17 February 2006 and that the co-offender had been on the drug program for approximately two years and eight months. 8 In substance this aspect of the applicant's argument was that for someone diverted into the Drug Court program, whose sentence was suspended for the period of the program, the results were far more lenient than for a person not offered that opportunity. 9 That assessment may be accepted in its terms. However, the leniency so perceived does not reflect an assessment of the seriousness or culpability of the offending. It reflects the separate purposes and objects of the statutory scheme: see Drug Court Act, s 3. As the Minister stated in the Second Reading Speech (Hansard, 27/10/1998, p 9030): "An offender may choose to participate in the Drug Court program or, alternatively, be dealt with through the normal channels of the criminal justice system. Given the structure of the program and the target group, the choice facing an offender will often be rehabilitation or gaol. The Drug Court program represents an ethically defensible form of legally coerced treatment for drug-dependent offenders. It uses the threat of imprisonment as an incentive for treatment entry and the fear of return to prison as a reason for complying with drug treatment whilst on parole or probation." 10 It follows that it is not the diversion into a rehabilitation program which is to be compared, for the purposes of parity in sentencing, with the imprisonment imposed on a co-offender. The legitimate comparison is between the initial sentence imposed in accordance with the Sentencing Procedure Act and the sentence imposed on the co-offender. The fact that one co-offender is eligible for the program because of drug dependency, whilst another is not, may itself have consequences for the relevant comparison; nevertheless, it is the equivalent sentences under the Sentencing Procedure Act which must be compared. 11 Adams J points out that an offender may no doubt be left with a subjective sense of grievance. However, the question is whether that sense of grievance is "justifiable" in an objective sense, as that term was used by members of the Court in Lowe v The Queen, referred to above. As explained by Brennan J in that case at p 617: "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust." 12 To state the principle is to highlight a further matter, of critical importance in the present case, namely the need to identify relevant considerations and the weight which should properly be given to such considerations. In times past, those considerations and their appropriate weight were determined by reference to general law principles of sentencing. More recently, there has been extensive statutory intervention: see, eg, Part 3 of the Crimes (Sentencing Procedure) Act. The diversionary regime of the Drug Court Act provides a further example. Where the statutory preconditions for its operation apply in relation to one co-offender, but not the other, the statute itself will operate to permit, or even mandate, disparate treatment. Accordingly, to the extent that the statutory scheme provides for apparent leniency, through the suspension of a sentence, any sense of grievance felt by the co-offender who does not fall within the scheme is not a justified grievance. Rather, the discrepancy is mandated by statute. 13 It follows that the suspension of Mr Haynes' sentence was a factor properly disregarded in sentencing the applicant. As already noted, there may be justification in seeking to compare the sentence imposed on the co-offender by the Drug Court with that imposed on the applicant. As already noted, there are difficulties in seeking to compare a fixed term with a sentence involving a non-parole period and a further balance of term, not involving compulsory confinement. If the initial sentence imposed by the Drug Court does not, of itself, warrant interference with the sentence of the applicant (as concluded above) the suspension of that sentence will not assist the applicant. 14 It remains to note that the practice adopted by the Drug Court in relation to Mr Haynes, which was disapproved in Rice, has now been given statutory form as a result of amendments to Part 2 of the Drug Court Act effected by the Crimes and Courts Legislation Amendment Act 2006 (NSW), Schedule 1.14[7]. 15 The applicant not having established a basis for intervention by this Court, I would refuse leave to appeal against sentence. 16 BARR J: I agree with Basten JA. 17 ADAMS J: