AB v R

Case [2013] NSWCCA 160

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales
Case Title: AB v R
Medium Neutral Citation: [2013] NSWCCA 160
Hearing Date(s): 15 February 2013
Decision Date: 05 July 2013
Before: Hoeben CJ at CL at [1]
Adams J at [4]
Beech-Jones J at [77]
Decision:

(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence in relation to count 2 and substitute the following sentence:
The appellant is sentenced to a term of imprisonment with a non-parole period of 5 years and 4 months to date from 1 July 2008 and to expire 1 November 2013, with a balance of term of 2 years and 1 month, which will expire on 1 December 2015.
(4) The sentence imposed on 24 February 2012 is varied to commence on 1 November 2013.
Catchwords: CRIMINAL LAW - appeal against sentence - commercial supply of prohibited drugs - dealing with the proceeds of crime - two-stage approach by sentencing judge - dominance of standard non-parole period - whether financial reward an aggravating feature or inherent characteristic of offence - whether consideration of sentence appealed from affected by sentences not subject to appeal.
Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149
Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bowden v R [2009] NSWCCA 45
Couloumbis v R [2012] NSWCCA 264
Elyard v R [2006] NSWCCA 43
Kerr v R [2008] NSWCCA 133
Marinellis v The Queen [2006] NSWCCA 307
McMahon v R [2011] NSWCCA 147
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R (1998) 194 CLR 610
R v Bottin [2005] NSWCCA 254
R v Dang [2005] NSWCCA 430
R v Georgiou [2005] NSWCCA 237
R v Grube [2005] NSWCCA 140
R v Kaldor (2004) 158 A Crim R 271
Category: Principal judgment
Parties: AB (Applicant)
Regina (Respondent)
Representation
- Counsel: Counsel:
D Carroll (Applicant)
J G Girdham SC (Crown)
- Solicitors: Solicitors:
Miers Legal (Applicant)
Director of Public Prosecutions (Crown)
File Number(s): 2008/12914
2008/258976
Decision Under Appeal
- Court / Tribunal: District Court
- Before: Flannery DCJ
- Court File Number(s): 2008/129142008/258976

JUDGMENT

  1. HOEBEN CJ at CL: I agree with pars [26] and [27] of the judgment of Adams J to the effect that error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 did occur. Subject to what follows, however, I am not satisfied that a lesser sentence is warranted. As Adams J appreciated in par [36], the sentence imposed is well within the discretionary range. On my analysis of the facts surrounding the offending, that…

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AGLC
AB v R [2013] NSWCCA 160
Case
[2013] NSWCCA 160
Decision Date

CaseChat Overview and Summary

In the case of AB v R, the applicant seeks leave to appeal against his sentence for the commercial supply of prohibited drugs. The primary issue before the court was whether the sentencing judge had erred in her consideration of the standard non-parole period applicable to the offence of commercial supply of drugs, as referenced in the High Court decision of Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The court had to determine if the sentencing judge's reliance on the standard non-parole period was erroneous, and if so, whether this error warranted a lesser sentence.

The court found that the sentencing judge did indeed err by adopting a two-stage approach in applying the standard non-parole period, which is contrary to the High Court's guidance in Muldrock. The court highlighted that the standard non-parole period should not dominate the sentencing process nor should it be considered as a primary determinant of the sentence. Instead, the sentencing judge should have applied a more balanced approach, considering all relevant factors as identified in the Crimes (Sentencing Procedure) Act 1999. The error in the sentencing process was deemed significant enough to warrant a reassessment of the sentence.

Consequently, the court granted leave to appeal, allowed the appeal, and quashed the original sentence. It substituted a new sentence, setting a non-parole period of 4 years and 3 months, effective from 1 July 2008, ending on 31 October 2012, with a balance of term of 2 years and 3 months. The court also directed that the appellant's immediate release on parole be ordered, as his non-parole period had already expired.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal only in respect of the sentence for the commercial supply which was imposed on 28 May 2010. The ground of appeal is that the learned sentencing judge erred in the manner in which she had regard to the standard non-parole period applicable to that offence, relying on Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The facts These were not in dispute. The following account is taken largely from the sentencing judge's remarks on sentence (omitting quotation marks for ease of reading). On 24 October 2007 W, who had been given $38,550 and fitted with a listening device, went to the applicant's premises and said, in effect, that he wanted 7 ounces of methylamphetamine. The applicant said that he only had 1½ ounces and gave him a sample, retrieving white powder from a hiding place in the garden. W took what he was given to police. It was found to be methylamphetamine weighing 5.13 grams with a purity of 1.5 per cent. Next day, W visited the applicant, taking the money with him and having been fitted with a listening device, told the applicant that he wanted 7 ounces and handed him the cash. The applicant told him to meet him down the road in five minutes. W did so. The applicant handed W a plastic bag which he took to police. The bag was found to contain methylamphetamine weighing 192 grams with a purity of 80 per cent. This was the supply offence of which the applicant pleaded guilty on 18 November 2009. Later on that night police officers searched two residential premises. In the roof of the garage at one house they found 296.9 grams of methylamphetamine, some of which had a purity of 79 per cent. This is the commercial supply against the sentence for which the applicant seeks leave to appeal. In the other house they found $616,000, which included the money paid by W and all of which was the proceeds of crime, namely the supply of prohibited drugs. It was during the execution of this search warrant that the applicant was arrested. The approximate street value of the drugs sold to W was $56,000 and those found in the house between $84,000 and $220,675. The following is a brief summary, again not controversial, of the facts underlying the offences in the Form 1. The first three were committed on 17 April 2007 and concerned supplying 38.2 grams of cocaine, supplying 193.9 grams of methylamphetamine and dealing with $19,350 suspected of being the proceeds of crime. In respect of the first two, W made enquiries of the applicant as to the supply of cocaine and methylamphetamine. On the following day, he went to the applicant's home at Mount Pritchard, paid him $39,600 and was given cocaine and methylamphetamine, which he took away with him. Shortly after, he was arrested and these drugs were found in his possession comprising 34.1 grams of cocaine with a purity of 51 per cent and 193.9 grams of methylamphetamine with a purity of 33.5 per cent. W was arrested and charged. The third offence concerned the discovery by police later on 17 April 2007 of $19,350 (part of the money earlier paid to him by W to purchase the drugs) in the main bedroom of the applicant's house. (The applicant, who was arrested on 18 April 2007 for these offences, was granted bail on 11 May 2007 and was therefore on bail when he committed the offences to which he pleaded guilty in November 2009.) The fourth offence was committed on 20 August 2007 whilst the applicant was on bail and involved the supply to W of 83.1 grams of methylamphetamine with a purity of 24 per cent for $11,500. This transaction occurred at the applicant's home. The fifth offence occurred on 28 September 2007 when W met the applicant at his home and paid him $16,500 for the purchase of methylamphetamine. After giving W a sample to test, the applicant told him to go to another address and handed him three plastic bags which contained in all 82.3 grams of methylamphetamine with a purity of 82.5 per cent. At several previous meetings, W and the applicant had discussed the sale of ice, although this did not ultimately occur. The sixth offence arose from the discovery by police on a search of the applicant's home of $616,658 which was reasonably suspected of being the proceeds of drug sales.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ
With respect to those who differ on this point, I consider that the approach expressed by Hulme J in Smith, by me in Marinellis and, with further explication, by Basten JA in Arnaout is correct, at least in a situation such as the present where the appeal is confined to one sentence which is imposed prior to and entirely separate from the subsequent sentence for another charge, even though, in respect of the latter, it was committed as a part of the criminal activity generally being undertaken at the time of the earlier sentence. At all events, this case comes well within the exception mentioned by Hidden J in Smith (above quoted at [53]) where the approach his Honour preferred should not be adopted where "[although] linked in time, the ... offences were of a different nature and were unrelated". The commercial supply was, to use his Honour's phrase "an entirely discrete offence" and a sentence affected by error which, of itself, was such that a lesser sentence was warranted, "[should] not be allowed to stand simply on the basis that the overall sentence was a fair reflection of the criminality of all ... offences".Conclusion I propose the following orders - (1) Grant leave to appeal.(2) Allow the appeal.(3) Quash the sentence and substitute the following sentence:(i) The appellant is sentenced to a non-parole period of 4 years and 3 months commencing 1 July 2008 and ending on 31 October 2012 with a balance of term of 2 years and 3 months.(4) The sentence imposed on 24 February 2012 is varied to commence on 1 November 2012. It follows that the non-parole period currently being served by the appellant expired on 30 May 2013. By virtue of s 50 of the Crimes (Sentencing Procedure) Act 1999 the Court is required to direct the appellant's immediate release on parole. BEECH-JONES J: I have had the advantage of reading a draft of the judgment of Adams J. His Honour's judgment relieves me of the necessity to set out the background to the application for leave to appeal. I agree that that the sentencing judge erred in sentencing the applicant in 2010 on count 2 of the indictment to which he had pleaded guilty in November 2009 (the "first indictment") by attaching a significance to the non parole period that was not warranted having regard to the High Court's decision in Muldrock v R [2011] HCA 39; 244 CLR 120. In my view that conclusion follows from a consideration of the extracts from the sentencing judgment noted in the judgment of Adams J at [16] to [17]. The judgment in Muldrock was published subsequent to the sentencing judgment in this case. The next question that arises is whether any lesser sentence for that count is warranted in law (s 6(3) of the Criminal Appeal Act 1912). As noted by Adams J the sentencing judge applied a discount to each of the two offences on the first indictment of 35 per cent having regard to his plea and s 23 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). This meant that for count 2 the notional starting point for the sentence prior to any discount was a head sentence of 11 years and 6 months with a non-parole period of 6 years and 9 months. If this arithmetic is extended, then the combined head sentence for counts 1 and 2 prior to the application of any discount was 12 years and 8 months with a non-parole period of 9 years and 5 months.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

So far as the mathematical argument is concerned, it was submitted by the Crown that the aggravating features mentioned by the sentencing judge (discussed below) were of such significance that, had the standard non-parole period dominated the process as contended by the applicant, the non-parole period ultimately imposed must necessarily have been higher. Consideration In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the Court said (at [122]) that, when the standard non-parole period was departed from, it should "take its place as a reference point ... along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with a sentence which is provisionally reached" after taking into account what might be called the conventional matters, although (at [131]) the Court warned against starting with the standard non-parole period and "to oscillate about it by reference to the aggravating and mitigating factors, [noting that the] problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise...". (Emphasis added). Accordingly, in Way the standard non-parole period is afforded particular significance. In Muldrock the High Court said (at [25]) that a sentencing court "is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed with an assessment of whether the offence is within the midrange of objective seriousness". Furthermore, it "is a mistake to give primary, let alone determinative, significance" to the standard non-parole period (at [26]). Nor does the Act permit a two-stage approach to sentencing (at [28]). In discussing the applicability of the standard non-parole period in this case the judge referred to Way, in particular, "as to the approach to be taken when determining whether there are reasons not to impose the standard non-parole period", imposition of which was not, as her Honour observed, "obligatory" because the applicant pleaded guilty to the offence. Her Honour said that it remained relevant "as a reference point, benchmark, sounding board or guidepost", going on to refer to exercising the "sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the [Crimes (Sentencing Procedure) Act 1999]". To my mind, these passages imply that the judge intended to approach the application of the standard non-parole period in the manner criticised in Muldrock, namely by asking whether there were reasons for not imposing it. This approach is not corrected by noting that it was not obligatory to impose the standard non-parole period. Moreover, they show that the standard non-parole period not only dominated the exercise but reflected a two-stage approach. Firstly, her Honour stated that there must be "an appropriate relationship between the standard non-parole period and the objective criminality of the offences, regardless of the other matters that may be taken into account by way of mitigation". Then her Honour determined that the offence was below the middle of the range of objective seriousness, which again focused on the standard non-parole period and, in my view, was intended by her Honour to explain why, quite apart from subjective features, it should be departed from. The judge, having formed the view that the standard non-parole period should be departed from, went on to utilise it as central to the assessment of sentence by measuring the extent of objective seriousness by reference to that which attracted the standard non-parole period. It scarcely needs to be said that her Honour's reasons need to be read as a whole. However, there is nothing in those reasons which varies or qualifies the passages to which I have referred.