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25
Court of Criminal Appeal 26 May 2000

Regina v Carrion

[2000] NSWCCA 191

Also reported as [2000] 49 NSWLR 149
Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE CROWN APPEAL AGAINST INADEQUACY DRUG TRAFFICKING ABSENCE OF EXCEPTIONAL CIRCUMSTANCES FULL TIME CUSTODY REQUIRED

Citation: Regina v Carrion [2000] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judges: Spigelman CJ; Wood CJ at CL; Foster AJA; Grove J; James J

Background

The respondent pleaded guilty to two drug trafficking counts in the District Court. The sentencing judge imposed periodic detention rather than full-time custody. The Crown appealed on the ground that the sentence was inadequate, arguing that the absence of exceptional circumstances required a full-time custodial sentence.

The original sentence had been imposed under the then-current Sentencing Act 1989. By the time the Crown appeal was heard, that Act had been repealed and replaced by the Crimes (Sentencing Procedure) Act 1999. The two regimes differed in an important structural way: the 1989 Act required a sentencing court to set a minimum term and an additional term, while the 1999 Act required the court to set a total term first, then a non-parole period.

This created a threshold question the Court of Criminal Appeal had to resolve before resentencing: which legislative regime governed the form of any new sentence it imposed on a successful Crown appeal?

  • Whether the Crimes (Sentencing Procedure) Act 1999 applied when the Court of Criminal Appeal resentenced an offender following a successful Crown appeal, where the original sentence had been imposed before that Act commenced.
  • Whether the transitional provision in clause 37 of Schedule 2 of the 1999 Act preserved the operation of the old Sentencing Act 1989 in these circumstances.
  • Whether the original sentence of periodic detention was manifestly inadequate for serious drug trafficking offences in the absence of exceptional circumstances.
  • What sentence was appropriate on resentence, taking into account double jeopardy, the respondent's progress on periodic detention, and his early guilty pleas.

Decision

Which Act applies on resentence?

Spigelman CJ (with whom the other judges agreed) held that the Crimes (Sentencing Procedure) Act 1999 applied. The definition of "court" in section 3(1) of that Act expressly includes the Court of Criminal Appeal, and the obligation in section 44(1) to set a total term and non-parole period falls on "a court" when "sentencing an offender." The Court of Criminal Appeal, when exercising its discretion under section 5D(1) of the Criminal Appeal Act 1912 to "vary the sentence and impose such sentence as to the Court may seem proper," is imposing a penalty for an offence and therefore falls within section 44(1).

Did the transitional clause preserve the old regime?

The Crown raised, without formally submitting, that clause 37(a) of Schedule 2 of the 1999 Act might preserve the old legislation. That clause allowed things "begun" before the Act commenced to be "continued and completed" under the old legislation. Spigelman CJ rejected this argument. The imposition of a sentence is not something that "begins" and remains ongoing until an appellate court acts on it. Once sentence was pronounced in the District Court, the judicial process was complete. A Crown appeal does not continue or complete any prior process. Clause 37(a) had no application.

Adequacy of the original sentence and the resentence

The Court allowed the Crown appeal, finding that periodic detention was inadequate for the drug trafficking offences in the absence of exceptional circumstances. Grove J (with whom James J agreed) conducted the resentencing, finding no special circumstances warranting a departure from the standard proportionality between head sentence and non-parole period under section 44(2) of the 1999 Act. The Court took into account double jeopardy, the respondent's satisfactory service of periodic detention to date, and the utilitarian benefit of his early guilty pleas.

Orders Made

  • The Crown appeal was allowed.
  • The sentences imposed in the District Court were quashed.
  • The respondent was sentenced on each count to three years' imprisonment, commencing 23 May 2000, to be served concurrently.
  • A non-parole period of two years and three months was set, commencing 23 May 2000.
  • The respondent was ordered to be released to parole on 22 August 2002.

Key Takeaways

  • The Crimes (Sentencing Procedure) Act 1999 applies when the Court of Criminal Appeal resentences an offender on a successful Crown appeal, even where the original sentence was imposed before that Act commenced.
  • The transitional savings provision in clause 37(a) of Schedule 2 of the 1999 Act does not preserve the old Sentencing Act 1989 in this context. The imposition of a sentence is not a process that "begins" in the sentencing court and remains ongoing pending any appellate intervention.
  • A structural difference between the two regimes matters in practice: under the 1989 Act the court set minimum and additional terms, but under section 44 of the 1999 Act the court must fix the total term first, meaning a finding of special circumstances reduces the non-parole period rather than extending the additional term.
  • Serious drug trafficking offences ordinarily require full-time custody in the absence of exceptional circumstances, and periodic detention will not suffice.
  • On resentence following a successful Crown appeal, double jeopardy remains a relevant consideration, as does any satisfactory progress the offender has made in serving the original sentence.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 44, 55; Sch 2, cl 37
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Interpretation Act 1987 (NSW), s 55

Cases
- R v GDR (1994) 35 NSWLR 376
- R v Hampton (1998) 46 NSWLR 729
- R v Bloomfield (1998) 44 NSWLR 734
- Rodway v The Queen (1990) 169 CLR 515
- Radenkovic v The Queen (1990) 170 CLR 623
- Siganto v The Queen (1998) 194 CLR 656
- Breeze v R (1999) 106 A Crim R 441
- Samuels v Songaila (1977) 16 SASR 397
- Bakker v Stewart [1980] VR 17
- R v Mason & Saunders (1997) 98 A Crim R 204
- R v Cacciola (unreported, CCA, 15 October 1998)
- Griffiths v The Queen (1977) 137 CLR 293
- R v Bond (1990) 48 A Crim R 1