Court of Criminal Appeal
New South Wales
Case Title: R v Calcutt Medium Neutral Citation: [2012] NSWCCA 40 Hearing Date(s): 9 November 2011 Decision Date: 23 March 2012 Jurisdiction: Before: Whealy JA at [1]
Adams J at [32]
Latham J at [63]Decision: 1.Leave to appeal against sentence allowed.
2.Appeal dismissed.
Catchwords: Sentence by majority - application of Muldrock v R [2011] HCA 39 - whether lesser sentence warranted in law - significance of Form 1 offence.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 - s 32, s 33
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985 - s 3, s 25, s 29Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; (2002) 56 NSWLR 146.
Caristo v R [2011] NSWCCA 7
Dionys v R [2011] NSWCCA 272
Kalemusic v R [2009] NSWCCA 178
Muldrock v The Queen [2011] HCA 39
Paxton v R [2011] NSWCCA 242
R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
R v Brandt [2004] NSWCCA 3
R v Carey (1990) 20 NSWLR 292
R v Felton [2002] NSWCCA 443, (2002) 135 A Crim R 328
R v Grube [2005] NSWCCA 140
R v Stankovic [2006] NSWCCA 229
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Cvitan v R [2009] NSWCCA 156
Wong v R (2001) 207 CLR 584Texts Cited: Category: Principal judgment Parties: Ryan Ashley Calcutt (Applicant)
Regina (Respondent)Representation - Counsel: P Hamill SC (Applicant)
J Girdham (Respondent)- Solicitors: Matouk Joyner Lawyers (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)File number(s): 2009/133363
Decision Under Appeal - Court / Tribunal: - Before: Hock J - Date of Decision: 14 May 2010 - Citation: - Court File Number(s) 2009/133363 Publication Restriction:
JUDGMENT
WHEALY JA: I have had the advantage and assistance of considering both the first and second draft judgments of Adams J and the decision of Latham J issued in response to that draft. The issue to be resolved in the present concurrent application and appeal is whether a lesser sentence than that imposed by the sentencing judge is warranted in law. In the end, upon reflection and after careful deliberation, I have come to the view, on this re-sentencing exercise, that no lesser sentence is warranted.
In view of the areas of difference revealed in the respective positions taken by their Honours, I wish to add a few brief comments of my own.
I rather gather that there are essentially three points of difference between their Honours, although each point has a collective impact upon the ultimate question as to the appropriateness of the sentence imposed.
The first relates to the weight to be given to the applicant's subjective case in the overall imposition of penalty. Secondly, there is the important question of the assessment of the objective gravity of the offence, particularly having regard to the applicant's involvement and the quantity…
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- AGLC
- R v Calcutt [2012] NSWCCA 40
- Case
- [2012] NSWCCA 40
- Decision Date
CaseChat Overview and Summary
The case of R v Calcutt was heard in the New South Wales Court of Criminal Appeal. The applicant, who was convicted for his involvement in a large-scale commercial drug manufacturing enterprise, appealed against the sentence imposed by the sentencing judge. The appellant argued that the sentencing judge erred in applying Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, which sets out standard non-parole periods for certain offences. Specifically, the applicant claimed that the judge gave too much weight to the standard non-parole period and did not sufficiently consider mitigating factors, ultimately imposing a manifestly excessive sentence. The Crown conceded that the sentencing judge's approach was in error but argued that no lesser sentence was warranted in law.
The primary issue before the court was whether the sentence imposed by the sentencing judge was excessive and warranted a reduction in accordance with section 6(3) of the Criminal Appeal Act 1912. The court considered the nature and objective seriousness of the offence, the applicant's role and level of involvement, and the statutory requirements for setting a non-parole period. The court also examined the significance of the applicant's early plea and the relevance of any mitigating factors. Furthermore, the court addressed the impact of the sentencing judge's error in mischaracterising the applicant's charge on the Form 1, which referred to an offence of manufacture rather than knowingly taking part in the manufacture.
The court found that, while the maximum penalty for the offence was life imprisonment and the non-parole period was fifteen years, the applicant's offending did not approach the most serious category. The court considered an appropriate starting point for the head sentence to be 12 years' imprisonment, with a 25% discount for the early plea, resulting in a term of eight years. The statutory calculus resulted in a non-parole period of six years. However, taking into account the applicant's prospects of rehabilitation and the desirability of providing a substantial period of supervision, the court varied the non-parole period to five years, with a balance of term of three years. The court concluded that a lesser sentence was not warranted in law, and the appeal against sentence was dismissed.
The final orders of the court were to grant leave to appeal against sentence, quash the sentence imposed by the sentencing judge, and impose a new sentence of five years' imprisonment with a non-parole period of five years, commencing on 19 December 2008 and ending on 18 December 2013, and a balance of term of three years, commencing on 19 December 2013 and ending on 18 December 2016.
The primary issue before the court was whether the sentence imposed by the sentencing judge was excessive and warranted a reduction in accordance with section 6(3) of the Criminal Appeal Act 1912. The court considered the nature and objective seriousness of the offence, the applicant's role and level of involvement, and the statutory requirements for setting a non-parole period. The court also examined the significance of the applicant's early plea and the relevance of any mitigating factors. Furthermore, the court addressed the impact of the sentencing judge's error in mischaracterising the applicant's charge on the Form 1, which referred to an offence of manufacture rather than knowingly taking part in the manufacture.
The court found that, while the maximum penalty for the offence was life imprisonment and the non-parole period was fifteen years, the applicant's offending did not approach the most serious category. The court considered an appropriate starting point for the head sentence to be 12 years' imprisonment, with a 25% discount for the early plea, resulting in a term of eight years. The statutory calculus resulted in a non-parole period of six years. However, taking into account the applicant's prospects of rehabilitation and the desirability of providing a substantial period of supervision, the court varied the non-parole period to five years, with a balance of term of three years. The court concluded that a lesser sentence was not warranted in law, and the appeal against sentence was dismissed.
The final orders of the court were to grant leave to appeal against sentence, quash the sentence imposed by the sentencing judge, and impose a new sentence of five years' imprisonment with a non-parole period of five years, commencing on 19 December 2008 and ending on 18 December 2013, and a balance of term of three years, commencing on 19 December 2013 and ending on 18 December 2016.
Orders
Orders of the court
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Background
Background to the litigation
The original grounds of appeal focused on the approach of the learned sentencing judge to the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, which provided for standard non-parole periods. Those grounds of appeal claimed that the judge gave too much weight to the standard non-parole period, in effect "oscillating" downwards by reference to the mitigating factors, and that her honour erred in asking whether it was appropriate to impose the standard non-parole period and in placing the offence in the mid-range of objective seriousness. In addition, the applicant submitted that insufficient allowance was made for his favourable subjective features and, overall, that the sentence was manifestly excessive. The Crown conceded that, in light of the decision of Muldrock v R [2001] HCA 39 the approach of the sentencing judge was in error but submitted that the appeal should be dismissed upon the basis that no lesser sentence was warranted in law, vide s 6(3) of the Criminal Appeal Act 1912.Facts On 12 December 2008, police officers executed a search warrant on the applicant's premises, which were at that time unattended. Inside the house was found an MDMA manufacturing operation. In the ground floor garage and kitchen were large storage containers containing multi-coloured tablets and powder. Chemicals such as acetone were located in the kitchen. A black carry bag with a large number of tablets was on the kitchen counter. Tablets were found on the floor of the bedroom. The ground floor rooms were heavily contaminated with powder residue. A large number of multi-coloured tablets and powder was also found. On the first floor the surfaces were covered with powder residue and more gloves and protective clothing was found. In total, 220,000 tablets were found. The tablets and the powder were MDMA and weighed 59.471 kilograms. 102.7 grams of cocaine were also found. The applicant, accompanied by a solicitor, attended at Waverly Police Station on 19 December 2008 and was then arrested. He declined to take part in an interview. The applicant had been using illicit drugs for some time and this had escalated into a very serious problem by mid 2008. He used ecstasy and smoked ice. He borrowed well over $100,000 for the purpose of a restaurant business in which he was involved and also, by August 2008, had a drug debt of about $12,000. Unidentified persons suggested to the applicant that, to repay this debt, he permit his house to be used for the manufacture of illegal drugs. He accepted this offer and travelled overseas between August and October 2008, expecting (as the sentencing judge accepted) that the manufacture of the drugs would be completed by the time he returned. Before he left, he helped bring the three pill presses and the containers into the house. Following his return, however, manufacturing at a significant level was still taking place. The learned sentencing judge summed up the objective circumstances as follows - "Clearly, this was a large scale commercial drug manufacturing enterprise. The quantity of the drugs found in the house is such that the principals must have expected enormous profits. The offender received money and expected to be given more money. There is no precise evidence as to how much but it must have been in the thousands of dollars range. He also received drugs for his own use. On his own evidence, in addition to providing the premises, on his return from overseas the offender assisted in the manufacturing process by blending, sifting and using the pill press machines and also by placing the manufactured pills into the plastic containers."The judge concluded that the applicant was not a principal participant in the offence. Her Honour said, that, "while he provided the premises and also some fairly limited assistance with the manufacturing, his role could be described at a relatively low level".
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The maximum penalty of life imprisonment and the non-parole period of fifteen years certainly marks this offence as grave. At the same time, of course, the applicant's offending did not, by a very large margin, approach a case falling within the most serious category; nor, in my view, does it approach the middle of the range of objective seriousness. Taking into account all the objective matters and the applicant's subjective features I consider that an appropriate starting point for the head sentence is 12 years' imprisonment. Applying the discount for the early plea of 25% results in a term of eight years. The statutory calculus specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 results in a non-parole period of six years. I consider that the applicant's prospects of rehabilitation and the desirability of providing a substantial period of supervision to ensure to the extent that it is possible his continuing resolve to remain drug free and refrain from crime constitute special circumstances justifying a variation in this period to five years' imprisonment.Conclusion I would propose that leave to appeal against sentence be granted, that the sentence imposed be quashed and in place thereof the appellant be sentenced to a non-parole period of five years commencing on 19 December 2008 and ending on 18 December 2013 and a balance of term of three years commencing on 19 December 2013 and ending on 18 December 2016. LATHAM J: I have had the considerable advantage of reading the judgment of Adams J in draft. I am unable to agree that a lesser sentence is warranted in law. I would note at the outset that the primary judge mistakenly sentenced the applicant on the basis that he had pleaded guilty in the Local Court to a charge of knowingly take part in the manufacture of not less than the large commercial quantity of MDMA. In fact, the Court Attendance Notice, the committal document and the Form 1 all refer to an offence of manufacture. That is confirmed by the Law Part Code on the Court Attendance Notice (63587), which is different from that which signifies a charge of knowingly take part in manufacture (68384). Both forms of the offence are charged under s 24(2) of the Drug Misuse and Trafficking Act and carry the same maximum penalty and standard non parole period. To that extent, very little turns on the error. However, it has some relevance in my view to the assessment of the objective gravity of the offence. In his judgment, his Honour has dealt with the facts of the offence. There is no need to repeat them here, save that it is relevant to note that the three pill press machines which were the subject of charges on the Form 1 were located in the first floor living room and were switched on at the time of the search. The persons who suggested to the applicant that he discharge his drug debt by allowing the use of his premises for manufacture were known to the applicant. He indicated in his evidence that he would not disclose their names because of fears he held for his family.
Ratio Decidendi
Legal Principle Established
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