Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hutchen v R [2015] NSWCCA 101 Hearing dates: 26 March 2015 Decision date: 20 May 2015 Before: Hoeben CJ at CL at [1] Adams J at [46] McCallum J at [47] Decision: Leave to appeal against sentence is granted. The appeal is allowed. The sentences imposed by Mahony SC DCJ on 9 May 2014 are confirmed except for the sentence imposed in respect of the offence contrary to s7(1) of the Firearms Act 1996. The sentence imposed in respect of the possess prohibited firearm offence contrary to s7(1) of the Firearms Act 1996 is quashed and in lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 2 years commencing 12 December 2014 and expiring 11 December 2016 with a balance of term of 1 year expiring 11 December 2017. Catchwords: CRIMINAL LAW – sentence appeal – offences of supply prohibited drug, deal with the proceeds of crime and possess a prohibited firearm – offences committed while applicant on parole – parole revoked and applicant served balance of term – whether effect given to finding of special circumstances – whether sentencing judge obliged to take into account time spent in custody when offender was serving the balance of parole – error in failing to give effect to finding of special circumstances – need to re-sentence. Legislation Cited: Crimes Act 1900 – s193B(3) Crimes (Sentencing Procedure) Act 1999 – s3A, s10A, s47(3) Criminal Procedure Act 1986 – s166 Drug Misuse and Trafficking Act 1985 - s25(1) Firearms Act 1996 Cases Cited: Barnes v R [2014] NSWCCA 224 CM v R [2013] NSWCCA 341 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Caristo v R [2011] NSWCCA 7 Ith v R [2013] NSWCCA 280 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Maroun Younes v R [2012] NSWCCA 259 R v Kitchener [2003] NSWCCA 134 Sabongi v R [2015] NSWCCA 25 Category: Principal judgment Parties: Christopher Dallas Hutchen – Applicant Regina – Respondent Crown Representation: Counsel: Mr A Evers – Applicant Ms N Williams – Respondent Crown Solicitors: SE O'Connor – Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2012/273470 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 9 May 2014 Before: Mahony SC DCJ File Number(s): 2012/273470 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant seeks leave to appeal from the sentence imposed upon him by Mahony SC DCJ in the Newcastle District Court on 9 May 2014. 1. The applicant pleaded guilty to the following offences: 1. Supply a prohibited drug contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years. 2. Deal with the proceeds of crime contrary to s193B(3) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 15 years. 3. Possess a prohibited firearm contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years. 1. The court was asked to take into account matters on two Forms 1. An offence of possess restricted substance (Sildenafil – Viagra) was taken into account under count 1 on the indictment and an offence of possess three rounds of .32 calibre ammunition without a licence or permit was taken into account on count 3. 2. There were also related charges on a certificate pursuant to s166 of the Criminal Procedure Act 1986. These offences comprised drive while disqualified and drive in a manner dangerous. 3. His Honour sentenced the applicant as follows: Count 1 – Imprisonment with a non-parole period of 3 years commencing 12 September 2013 and expiring 11 September 2016, with an additional term of 2 years expiring 11 September 2018. Count 2 – A fixed term of imprisonment of 2 years commencing 9 May 2014 and expiring 8 May 2016. Count 3 – Imprisonment with a non-parole period of 2 years commencing 9 May 2015 and expiring 8 May 2017, with an additional term of 1 year expiring 8 May 2018. 1. The overall sentence was a total head sentence of 5 years with a non-parole period of 3 years 8 months to date from 12 September 2013 and to expire on 8 May 2017. His Honour dealt with the two matters pursuant to s166 of the Criminal Procedure Act 1986 under s10A of the Crimes (Sentencing Procedure) Act 1999. He disqualified the applicant from driving for 2 years from 7 December 2018 and a further period of disqualification for 10 years to date from 9 May 2014. 2. The applicant seeks leave to appeal from those sentences on the following grounds: Ground 1 – His Honour erred in not giving effect to his finding of special circumstances. Ground 2 – His Honour failed to consider whether time spent in custody in relation to the offences for which the offender was sentenced included a period when the offender was also serving a balance of parole for a prior offence. Factual Background 1. The offender has been in custody since his arrest on 1 September 2012. These offences were committed while he was on conditional liberty. His parole was revoked and he was sentenced to serve the balance of his term of imprisonment from 1 September 2012 to 11 September 2013. It follows from the sentences imposed by his Honour that the applicant has been in custody in respect of these offences from 12 September 2013. 2. In the early hours of 1 September 2012 the applicant was driving a white Commodore with two other unidentified passengers in the vehicle. As the vehicle approached a random breath test unit on Hillsborough Road Charlestown, it accelerated and was pursued by the police. The pursuit proceeded for a distance of about 1 kilometre, during which the vehicle driven by the applicant was speeding. The vehicle pulled into an apartment block and the occupants, including the applicant, ran off. 3. The applicant was located and arrested. He was searched and cash was found in his pockets in the sum of $8,790 and in his wallet in the sum of $930. In the vicinity of the car, the following items were found: a blue and grey Nike sports bag containing a bundle of cash secured with an elastic band amounting to $5,350; two envelopes containing $5,700, i.e. a total of $11,050; a blue and black bum bag which contained $7,500 in cash; 71.49 grams of methylamphetamine in three bags; a small electronic scale; small resealable bags; a .32 double barrel keyring pistol and .32 calibre cartridges. The sentence proceedings 1. The applicant pleaded guilty on the first day of his trial, notwithstanding that some negotiations had taken place during the preceding week. His Honour allowed the applicant a discount of 10 percent on sentence for the utilitarian value of his plea of guilty. 2. The applicant had a poor criminal history in relation to offences for drug possession and supply which his Honour set out as follows: 15 December 2005 - supply of prohibited drugs and possession of an unregistered firearm (imprisonment with a non-parole period of 3 years and a balance of term of 3 years); 2 July 2010 - supply of prohibited drugs (imprisonment with a non-parole period of 2 years with a balance of term of 1 years and 4 months). The applicant was released on parole in respect of the most recent charge on 1 July 2012 and was on conditional liberty when the current offences occurred. 1. His Honour took into account the following matters in relation to the applicant's subjective case. 2. A pre-sentence report, dated 24 March 2014, reported that his response to supervision had been traditionally poor. He was the youngest of seven children. An older brother had passed away from melanoma when he was aged 12 and another from injuries sustained in a motor vehicle accident in about 2004. His Honour accepted that the applicant struggled with depression as a result of unresolved grief issues arising from those tragic events. 3. Whilst in custody, the applicant had completed the first two stages of a drug rehabilitation program but had relapsed into drug use shortly after his conditional release on parole. The pre-sentence report assessed the applicant to be at high risk of re-offending. It noted that he had a long history of non-compliance with supervision compounded by his struggle to remain abstinent from illicit drug use. He was assessed as unlikely to benefit from a period of supervision by Community Corrections because of his history of non-compliance and his need for more intense therapeutic treatment. 4. A more recent pre-sentence report was received shortly before the sentence hearing. That report recorded that the applicant had completed a course at Long Bay in 2012 and that he stayed clean from drugs for three years whilst in custody but had relapsed a few months after release. The author of the report said that the applicant might well benefit from an Intensive Drug and Alcohol Treatment Program while in custody known as IDATP. This is a full-time drug and alcohol program presented at John Moroney Correctional Centre. 5. The author of the report stated that the applicant was currently on anti-depressant medication (Avanza), but that no other mental health diagnosis had been made by Justice Health while he was in custody. She assessed him as still addicted to drugs, in particular, ice and amphetamines. She believed that he was motivated to attend residential rehabilitation but that the IDATP program might only be an option if he received a lengthy sentence. 6. The applicant tendered a report of Dr Christopher Bench, psychiatrist, dated 27 April 2014. The applicant had been evaluated by Dr Bench via an audiovisual link on 23 April 2014. His Honour extracted the following information from the report. 7. The applicant had commenced abusing alcohol from the age of 16, had commenced using cannabis at age 17 and amphetamines at age 18. His past psychiatric history included a diagnosis of depression and post traumatic stress disorder arising from his rumination about his brother's death. Dr Bench thought that his history was consistent with a substance-induced psychotic disorder involving paranoid ideation of being watched and followed when using methylamphetamine. 8. Dr Bench considered that the applicant had previously met the diagnostic criteria for a major depressive disorder arising from the death of his brother in 2004, and that he met the diagnostic criteria for post traumatic stress disorder which was in remission. Dr Bench thought that he also met the diagnostic criteria for poly-substance dependence and for an anti-social personality disorder. 9. In relation to the applicant's recidivism, Dr Bench thought that the most significant factor in decreasing his risk of re-offending would be participation in a substance abuse treatment program. Dr Bench considered that he would require prolonged in-patient rehabilitation in order to increase his chances of remaining abstinent from drugs and alcohol. A positive factor noted by Dr Bench was that the applicant's parents were highly supportive of him and had offered him a place to live in Muswellbrook on his release from custody. 10. When considering the objective seriousness of the offending, his Honour took into account the maximum sentences prescribed. His Honour considered that the fact that the offences had occurred while the applicant was on conditional liberty was an aggravating factor. His Honour took into account the amount of methylamphetamine, which he regarded as substantial, even though it was well below the prescribed quantity defined by the Act as a commercial quantity, i.e. 250 grams. 11. His Honour noted that there was no evidence that the applicant was involved in the manufacture of drugs and that he was not at or near the top of any hierarchy in the distribution of drugs. Accordingly, his Honour found that the objective seriousness of the offending fell just below the mid-range of seriousness for offences of this kind. 12. His Honour had regard to the sentencing principles set out in s3A of the Crimes (Sentencing Procedure) Act 1999. He considered that general deterrence was an important matter to be taken into account for drug trafficking offences of this kind. Specific deterrence was also important, given the applicant's history of offending. His Honour regarded the presence of large sums of money, the scales and the re-sealable plastic bags as indicia of drug trafficking for profit. 13. His Honour specifically took into account that the applicant had been in custody since his arrest, that his parole was revoked and that he had served the balance of his previous term of imprisonment up to 11 September 2013. 14. His Honour found special circumstances as follows: "I find that there are special circumstances established pursuant to s 44 (2) of the Sentencing Act given the need for a long period of rehabilitation and in particular residential rehabilitation which may not be available whilst the offender is in custody. He has a long-standing drug addiction to overcome together with the unresolved grief issues that he has carried for many years. I have also had regard to the pre-sentence report of Ms Ambler and to the offender's suitability for the IDATP program that is available at the John Moroney Correctional Centre." (ROS 10.3) THE APPEAL Ground 1 – His Honour erred in not giving effect to his finding of special circumstances. 1. The applicant submitted that the individual sentences imposed by his Honour reflected his Honour's finding of special circumstances in that the ratio of the non-parole period to the parole period was between 60 and 66 percent. However, the combined effect of the sentences produced a ratio of the non-parole period to the head sentence of 73.3 percent. The applicant submitted that this result was contrary to his Honour's express intention and in the absence of any reasons, was indicative of error. Consideration 1. There is no general rule that just because an overall sentence does not reflect a finding of special circumstances, a sentencing judge must, having found special circumstances in respect of individual counts, make a further adjustment to the ratio in respect of the total accumulated sentence. Each case depends upon its own particular facts. 2. In a case such as this, where the express purpose for the finding of special circumstances was to satisfy the need for a long period of rehabilitation including residential rehabilitation, it is not only the ratio of the non-parole period to the head sentence which is important, but the actual periods involved are equally, if not more important (R A Hulme J in Caristo v R [2011] NSWCCA 7 at [41]). Here, the parole period of 1 year and 4 months is not particularly long in the context of the need for long term rehabilitation, including a residential component. 3. This issue was comprehensively examined by Hamill J (with whom Johnson J and I agreed) in Sabongi v R [2015] NSWCCA 25. That was a case where the finding of special circumstances was based on a need for extended rehabilitation and on the fact that there was an accumulation of sentences. Hamill J referred to the observation of R A Hulme J in CM v R [2013] NSWCCA 341 at [40] where his Honour said: "40 Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. …" 1. By way of elaboration of that principle, Hamill J said: "82 Where a sentencing Judge makes clear that they are aware that the total sentence is in accordance with the "statutory ratio", it is rare that this Court would intervene. In Houri v R the court declined to intervene in a case where an adjustment in respect of one sentence resulted in a sentence wherein the non-parole period was marginally greater than 75% of the overall term. R A Hulme J said at [34]: "I do not believe that there was any inadvertence or miscalculation by the Judge. She imposed individual sentences and partially accumulated them to achieve the precise result that she said she intended. In the first passage quoted above she said that in the overall total sentence 'the statutory ratio will not reduce substantially'. In the second passage she noted that 'the total non-parole period is very close to the statutory ratio when one has regard to the total sentence, and that is what I intend in passing sentence'." 83 Similarly in AB v R the Court declined to intervene when the sole basis of the finding of special circumstances was "by reason of the accumulation of sentences". 84 Conversely, in cases where the finding of special circumstances was more broadly based then the accumulation itself and where the sentencing Judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the "statutory norm" the court has intervened: see R v LWP; R v Thornberry; R v Keen; R v Street; R v Heron v R; M v R." 1. On my reading of his Honour's reasons in this case, there is no indication of his Honour's awareness that the total effective sentence would remain close to the "statutory norm". In those circumstances, I am satisfied that error has occurred in the sense that the combined effect of the total sentence has not given effect to his Honour's intention when making his finding of special circumstances. This ground of appeal has been made out. Ground 2 – His Honour failed to consider whether time spent in custody in relation to the offences for which the offender was sentenced included a period when the offender was also serving a balance of parole for a prior offence. 1. The applicant noted that at the time of his arrest, he was on parole for an offence of supplying a prohibited drug and that his parole was revoked as a result of his arrest for the present offences, i.e. the commission of the present offences was the sole reason for the revocation of his parole. 2. The applicant submitted that because the commission of the present offences resulted in the revocation of parole, his Honour should have given consideration to whether the sentence for the fresh offences should run concurrently, cumulatively or partially concurrently with the period spent in custody serving the balance of parole. In that regard, the applicant relied upon s47(3) Crimes (Sentencing Procedure) Act 1999 which, inter alia, required the sentencing judge to "take into account any time for which the offender has been held in custody in relation to the offence". 3. The applicant submitted that when passing sentence, his honour gave no consideration to the question of whether the time spent in custody from the date of arrest was "time for which the applicant was held in custody in relation to the offence" for which he was being sentenced. He submitted that no consideration was given to the question of whether the sentence imposed could be backdated such that it was served concurrently or partially concurrently with the previous sentence. He submitted that his Honour assumed that the sentence should commence at the conclusion of the sentence for which parole was revoked. Consideration 1. It is incorrect to characterise the time spent in custody, as a result of the revocation of parole, as "any time for which the offender has been held in custody in relation to the offence" as referred to in s47 of the Crimes (Sentencing Procedure) Act 1999. Section 47(3) is directed to incarceration directly relating to the offence in respect of which the offender is being sentenced. The period in custody, as a result of the revocation of parole, was directly referable to the previous offending not this offending. 2. A sentencing judge when considering a sentence of imprisonment is to take into account any time for which the offender was in custody in relation to the offence, i.e. the offence for which the offender is being sentenced (s24(a) of the Crimes (Sentencing Procedure) Act. If the sentencing judge orders that a sentence of imprisonment commence on a date before the date of sentence, the court is to take into account time held in custody for the offence (s47(2)). 3. There is no doubt, as the applicant submitted, that his Honour had a discretion to backdate the commencement date of this sentence so that it would be concurrent with or partly concurrent with the balance of parole (R v Kitchener [2003] NSWCCA 134; Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145). This does not mean that his Honour was obliged to exercise his discretion in that way. When parole is revoked as a consequence of the commission of a subsequent offence, whether the sentence for the subsequent offence should be backdated in that way is a matter for the sentencing judge. 4. The relevant principles were set out by Simpson J in Callaghan. There Simpson J (with whom James and Hall JJ agreed) said: "21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences." 1. Here, the applicant had only been on parole for two months at the time of committing the new offences. Another important consideration which was identified in Ith v R [2013] NSWCCA 280 at [52] was the similarity between the offences for which parole was being served and the offence then under consideration. Moreover, no submissions were made to his Honour on the issue raised in this ground of appeal nor as to backdating the commencement date of the sentence to a date earlier than 12 September 2013. Finally, there was no oversight in his Honour determining the commencement date for this sentence. His Honour was well aware of the revocation of parole and referred to it on more than one occasion. 2. On that latter issue, Adamson J (with whom McClellan CJ at CL and Hidden J agreed) said in Maroun Younes v R [2012] NSWCCA 259: "27 It is also, in my view, noteworthy that no submissions were made by the applicant at the sentence hearing of the consequences of not backdating the sentence to the time of the arrest in terms of the ratio referred to above. It is not appropriate to approach the sentence hearing upon the basis that, if the sentencing judge does not backdate the sentence for the index offence to the time of the arrest, the applicant can argue for the first time in this Court that the sentencing judge failed to have regard to the numerical consequence of a calculation that he did not suggest ought to have been performed at the sentence hearing: Edwards v R [2009] NSWCCA 199 at [10]-[13], per Johnson J, Allsop P and Kirby J agreeing." 1. The observation which I made in Barnes v R [2014] NSWCCA 224 is also applicable to this case: "28 Callaghan v R is a useful decision because of its review of previous decisions of this Court and the statements of principle therein. What should not be lost sight of is that the effect of that review is that the decision of a sentencing judge as to whether or not to make a new sentence partially concurrent or wholly cumulative upon a revoked period of parole involves the exercise of a discretion by that judge. The exercise of discretion has to be carried out in a principled way but it remains the exercise of a discretion. 29 For the applicant to succeed on these grounds, he needed to show that it was not open to Price J to exercise the discretion in the way in which he did. Unless the applicant could point to a specific error (which he could not) it was necessary for him to establish that the discretion was wrongly exercised on House v King [1936] HCA 40; 55 CLR 49 grounds. This he has not done." 1. This ground of appeal has not been made out. Re-sentence 1. The applicant has been successful on his first ground of appeal. On my review of the facts, I have concluded in accordance with the guidance in Kentwell v The Queen [2014] HCA 37 at [42] – [43]; 313 ALR 451 that a lesser sentence is warranted in law. Such a sentence should give effect to the express intention of the sentencing judge. Accordingly, I propose to retain the sentences imposed by his Honour but to increase the level of concurrency. This will produce an effective sentence of imprisonment for 5 years with a non-parole period of 3 years and 3 months. 2. The orders which I propose are as follows: 1. Leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentences imposed by Mahony SC DCJ on 9 May 2014 are confirmed except for the sentence imposed in respect of the offence contrary to s7(1) of the Firearms Act 1996. 4. The sentence imposed in respect of the possess prohibited firearm offence contrary to s7(1) of the Firearms Act 1996 is quashed and in lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 2 years commencing 12 December 2014 and expiring 11 December 2016 with a balance of term of 1 year expiring 11 December 2017. 1. ADAMS J: I agree with Hoeben CJ at CL. 2. McCALLUM J: I agree with Hoeben CJ at CL. ********** 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: 20 May 2015