Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: John VISSER v R; John VISSER v R [2011] NSWCCA 146 Hearing dates: 10 June 2011 Decision date: 24 June 2011 Before: Hodgson JA at 1; Hoeben J at 2; Grove AJ at 3. Decision: Appeal dismissed Catchwords: SENTENCE - Discount for plea of guilty - Plea is not timely if entered after capture following escape - Parity - Different culpabilities arising out of transaction for sale of drugs Legislation Cited: Criminal Procedure Act 1986 Sentencing Act 1989 (repealed) Cases Cited: Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Category: Principal judgment Parties: (Applicant) John VISSER (Crown/Respondent) Regina Representation: Counsel: (Applicant) Self represented (Crown/Respondent) S Dowling Solicitors: (Applicant) Self represented (Crown/Respondent) Solicitor for Public Prosecutions File Number(s): 2008/14491-019, 2008/16672-004 Decision under appeal Jurisdiction: 9101 Citation: 2008/00014491, 2008/00016672 - R v John VISSER Date of Decision: 2010-03-19 00:00:00 Before: Freeman DCJ File Number(s): 2008/14491, 2008/16672 Judgment 1HODGSON JA: I agree with Grove AJ. 2HOEBEN J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Freeman DCJ on 19 March 2010 at Sydney District Court. 4The applicant had been arrested on 3 April 2007 following telephone intercepts and physical surveillance of him earlier that year. On 8 March 2007 he had negotiated to sell Heroin to one Robert Harris and at a transaction conducted at the McDonald's Restaurant Heathcote the applicant supplied Harris with 12.1grams of Heroin in exchange for $3,900. 5This actual supply was charged as count 1 and exposed the applicant to a maximum penalty of imprisonment for 15 years. 6After the purchase of the narcotic Harris, accompanied by his son, drove away from Heathcote and was stopped by police and arrested at Wahroonga. He was later charged with (deemed) supply and possession of the drug. 7On 26 March 2007 police surveyed the applicant entering bushland near Heathcote where he was observed to secrete something under a rock ledge. After his departure, they searched and found a length of PVC pipe containing various illicit drugs and other items, these being spoons, an electronic scale and re-sealable plastic bags. Intercepted telephone calls showed that the items, which were seized, belonged to the applicant. 8In connection with these matters he was charged with 3 counts of possession of drugs for supply consisting of 94grams of heroin, 27.89grams of methylamphetamine and 105.59 of MDMA or ecstasy, each charge carrying a maximum penalty of imprisonment for 15 years. These were charged as counts 2, 3 and 4. As the learned sentencing Judge observed, it cannot be denied that the applicant was a significant supplier and was not engaged in "mere street selling". 9After arrest the applicant was, on 5 April 2007, in a holding cell at Central Local Court with another person who was granted bail during the day. A correctional officer came to arrange the release of that prisoner who was asleep at the time and, by impersonating him, the applicant was released from custody. He remained unlawfully at large until re-arrested on 14 May 2008 when, as well as the outstanding charges above mentioned, he was charged with escape from lawful custody. This offence carried a maximum term of imprisonment for 10 years and was required in respect of any sentence imposed to be served consecutively to other impositions. This was charged as count 5 on the indictment. 10His Honour was asked to take into account pursuant to the Form 1 procedure 2 offences of supplying prohibited drugs (0.14grams of heroin and 0.16grams of crystal methylamphetamine) on 15 February 2007. the applicant was sentenced as follows: 11On count 1 (taking into account the Form 1 offences) to imprisonment consisting of a non parole period of 2 years 11 months commencing on 12 May 2008 and expiring on 11 April 2011 with a balance term of 12 months. 12On each of counts 2, 3 and 4 to a non parole period of 2 years 11 months commencing on 12 May 2009 and expiring on 11 April 2012 with a balance term of 12 months. 13On count 5 to imprisonment consisting of a non parole period of 4 months commencing on 12 April 2012 and expiring on 11 August 2012 with a balance term of 1 year 5 months. 14It is noted that his Honour also dealt with charges brought before him pursuant to s 166 of the Criminal Procedure Act 1986. These were dismissed, save an offence of failing to appear for which the applicant was sentenced to a fixed term of 3 months imprisonment to commence on 12 April 2012 and expire on 11 July 2012. 15The applicant was represented by counsel in the sentencing proceedings but has appeared for himself in the appeal. He has prepared comprehensive written submissions and filed 4 grounds of appeal as follows: "Ground 1. The sentencing judge was mis-informed and mis-led by the Crown in regards the timing of the guilty plea, the guilty plea was entered at low court prior committal proceedings and the sentencing discount should have been 25% instead of 12.5% sentencing discount. Ground 2. The judge erred in his judicial discretion which was not made in accordance with established sentencing principles according to Pearce ruling by not fixing an appropriate sentence for each offence, orders made for concurrence or cumulation was made on an imperfect foundation. Ground 3. No parity of sentence with co-accused Harris on Count 1. Harris was sentenced to 3months imprisonment the appellant was sentenced to 3years 11months with 2years 11months non-parole period. Ground 4. The cumulation and combination of grounds 1, 2, and 3 and errors made the sentence imposed manifestly excessive as the head sentence and non-parole period was not based on proper established sentencing principles and orders made for cumulation or concurrence was made on an imperfect foundation." 16Before turning to these grounds, I should mention some matters concerning the applicant's prior record. Those offences dealt with many years ago in the Childrens' Court and the Petty Sessions can be ignored. However, in 1984 he was convicted on charges of causing grievous bodily harm with intent to murder, causing grievous bodily harm maliciously by use of explosives and threatening to use an offensive weapon to hinder apprehension. On the more serious offences he was sentenced to imprisonment for life. In 1993, pursuant to the Sentencing Act 1989 (repealed), this sentence was redetermined and a total sentence imposed of 19 years 6 months which term wholly expired on 2 October 2001. Also now expired was a sentence of 2 years imprisonment imposed in 1990 for attempting to escape from lawful custody. I do not suggest, of course, that this history can be used to again punish the applicant but it provides a factor against the grant of leniency and, having regard to the current matters, his Honour commented that "not many lessons were learned or retained after his lengthy period of incarceration". 17The first ground of appeal claims that the learned sentencing Judge was misled as to the timing of the plea of guilty. The applicant received a "discount" expressed by his Honour to amount to 12.5%. The applicant contends that he should have received 25% for an early guilty plea. In oral submissions, the applicant stressed that this was the principal matter of complaint and, by calculation, he was effectively seeking a benefit by way of reduction of sentence in the order of 14 months. 18The figure of 25% has its origin in the judgment of Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 and it is apt to recapitulate exactly what he said namely: "The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 19As the Chief Justice had earlier pointed out the benefits to the criminal justice system to which he referred as "utilitarian" do not flow from an act of an offender which is directly related to any of the multifarious objectives designed to be served by the sentencing process such as deterrence, rehabilitation, punishment and the like. The utilitarian benefits are collateral to the efficiency and effectiveness of the criminal justice system as a whole. What is clear however is that, when referring to the timing of the plea, there was neither express nor implicit reference to delay consequent upon an offender being unlawfully at large. 20The thrust of the applicant's submissions on this ground was directed to his waiver of committal proceedings and the relative promptness of activity after he had been captured following a delay to the legal processes of over a year by reason of his escape. There was an obvious absence of benefit to the efficiency and effectiveness of the criminal justice system as a direct result of that delay for which the applicant was solely responsible. 21In any event the Crown in its submission pointed out that the records of the District Court show that on 11 September 2008 after waiver of committal, there were 10 listings for mention before the plea was ultimately entered on 6 March 2009. There may well have been some negotiations about agreed facts in the interim but his Honour's finding that the pleas were not entered at the earliest practicable time is undeniably correct. 22The judgment in the authority cited affirms that assessment of discount is a matter for discretionary decision and, although it may be subject to appellate review, the discretion in this case has not been shown to have miscarried. 23The second ground in effect recites a principle articulated in Pearce v The Queen (1998) 194 CLR 610. It is axiomatic that individual offences differ from each other to varying degrees but a requirement that there be assessment of each offence where multiple offences are involved does not mean that a Judge may not appropriately assess the same sentence for each of separate offences and determine that they be served concurrently. 24The order for concurrent service of the sentences on counts 2, 3 and 4 recognise that, although the drugs were different in type, and this of itself would have justified an element of cumulation, there was a sufficient unity of criminality in the offences to enable his Honour in effect to favour the applicant by ordering that these sentences be served concurrently. 25By contrast, the order for service of the sentence on count 1 resulted in a cumulation of 12 months upon the sentences for counts 2, 3 and 4. The supply of heroin to Harris was an offence committed on a different day and involved an actual supply of narcotic. Not only was it a sound exercise of his Honour's discretion to order cumulation to that extent but it might be perceived to be verging on error to refrain from so doing. 26The applicant acknowledged the statutory obligation to cumulate the sentence for escape. Ground 2 has not been sustained. 27Ground 3 complained of the lack of parity between the sentences received by the applicant and Harris. Although they were co-offenders in the sense of being participants in the one transaction they were not co-offenders in the sense of committing the same offence. The applicant was the vendor of the narcotic and Harris was the purchaser. It is true that, by reason of quantity, Harris was liable for a deemed offence of having the drug in possession for supply but that is obviously activity of a different quality from the applicant's action in making an actual supply. 28The submissions by the applicant refer to the marked disparity between the sentence which he received on count 1 and the effective sentence of 3 months imprisonment which was received by Harris. 29The applicable principle was epitomised by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 609 where the Chief Justice said: "The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she paid in the commission of the offence, have to be taken into account." 30In general, although not inevitably, the criminality of a seller of drugs is likely to be higher than that of a purchaser. In the present case there is a stark contrast between the criminal history of the applicant and that of Harris as the re-determined life sentence abovementioned demonstrates. Having received a discount of 50% for early plea of guilty and assistance to authorities, Harris was found to be in the category of an offender whose incarceration would cause exceptional hardship to his terminally ill wife. As Gibbs CJ postulated, all things were not equal between these two offenders and any grievance that the applicant feels by reason of his receiving the greater sentence is not, as required to be before intervention is appropriate, justifiable. 31The fourth ground complained that the sentence in its overall effect was manifestly excessive. In support of the argument reliance was placed upon the previous grounds argued which, for the reasons stated, should not be sustained. 32In recent years it has been emphasised by the High Court of Australia that there is no single correct sentence and simply because an appellate Court may have exercised sentencing discretion differently from a Judge at first instance, that provides no warrant for intervention. 33A sentence which is manifestly excessive must be one which is tainted by error or plainly unjust. The overall term in this instance is neither. It was well within the range of a sound exercise of discretion. 34The learned sentencing Judge was acutely aware of the onerous conditions in which the applicant will serve his sentence but, as he noted, this is a direct result of his own actions, not only in fleeing from custody but in respect of the attempt to escape many years ago. The applicant tendered to this Court material to show that he is still being kept in conditions which the sentencing Judge described as "quite draconian". It is not within the power of this Court to specify the conditions of custody. It is nonetheless available to be taken into account that the applicant's custody is unusually onerous, and as confirmed by his remarks on sentence, Freeman DCJ did so. 35When considering the total term, the Crown pointed out that the 4 month minimum term for the escape could only be described as extremely lenient. The finding by his Honour that this had been a "low grade" escape was as favourable to the applicant as he could expect. 36None of the grounds advanced by the applicant should be sustained nor has it been demonstrated that the sentencing discretion of the primary Judge has miscarried. 37I would grant leave to appeal against sentence but dismiss the appeal. ********** 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. Decision last updated: 24 June 2011