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Court of Criminal Appeal 11 August 2000

R v McCrea

[2000] NSWCCA 300

Also reported as 114 A Crim R 226
DrugsTraffic & driving
SENTENCE APPEAL FROM DRUG COURT REHEARING POWER TO IMPOSE SUSPENDED SENTENCE

Citation: R v McCrea [2000] NSWCCA 300
Court: Court of Criminal Appeal, New South Wales
Date: 11 August 2000
Judge(s): Smart AJ

Background

The appellant was sentenced by the Drug Court under the Drug Court Act 1998 following pleas of guilty to taking and driving a conveyance, possessing an implement to drive a vehicle without the owner's consent, and a related possession offence. He entered a drug rehabilitation program under that Act, with execution of his initial sentences suspended for the duration of the program.

The appellant initially showed progress but ultimately defaulted, and the Drug Court terminated his program. Judge Murrell DCJ then imposed final sentences under section 12 of the Act, including a minimum term of nine months' imprisonment on the most serious count, commencing May 1999. The appellant had spent three weeks in custody for breaching program conditions.

The appellant appealed to the Court of Criminal Appeal. This was the first such appeal from a Drug Court sentence to reach that court. The appellant sought leave to adduce additional evidence on the appeal, which raised threshold questions about the court's jurisdiction and powers before the substantive sentence issues could be addressed.

  • Whether special grounds existed to justify admitting additional evidence on the rehearing under section 5AA(3A) of the Criminal Appeal Act 1912
  • Whether the appeal was to be conducted as a rehearing on both the original and any admitted fresh evidence
  • Whether the Court of Criminal Appeal had power under section 5AA(4) to impose a suspended sentence, given that provision limits the court to making any determination the Drug Court "could have made"

Decision

Smart AJ outlined the statutory framework in detail, noting that the Drug Court Act 1998 establishes a two-stage sentencing process: an initial sentence with suspended execution during the rehabilitation program, followed by a final sentence under section 12 once the program ends. The final sentence cannot exceed the initial sentence, and the Drug Court must account for the offender's program participation, sanctions imposed, and time spent in custody.

On the fresh evidence question, the court accepted that special grounds existed and admitted the additional material. The rehearing therefore proceeded on both the original Drug Court evidence and the fresh evidence received on appeal, consistent with the approach confirmed in Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683.

The Crown argued the court lacked power to impose a suspended sentence, relying on the phrase "could have made" in section 5AA(4) and contending the relevant time for assessing that power was when the Drug Court imposed the final sentence. Smart AJ rejected this construction, holding that section 5AA(4) operates ambulatorily: the correct time to assess what the Drug Court "could have made" is at the time of the rehearing, not the time of the original final sentence. The decisive evidence had only come in at the rehearing stage.

Smart AJ found that the appellant, now in his mid-thirties, appeared to be moving toward genuine rehabilitation. No sufficient purpose would be served by a further period of imprisonment, though the seriousness of the offences warranted a suspended sentence with conditions rather than an immediate release without consequence.

Orders Made

  • Appeals against sentence allowed on counts 1, 2, and 4
  • Original sentences quashed
  • Count 1 (take and drive conveyance): imprisonment for 11 months and 2 weeks, execution suspended for the same period, with release conditional on a good behaviour bond of 11 months and 2 weeks commencing 28 July 2000
  • Count 2 (possess implement without consent): imprisonment for 6 months, execution suspended, release on a good behaviour bond of 6 months commencing 28 July 2000
  • Count 4 (possess implement capable of driving a vehicle): imprisonment for 4 months, execution suspended, release on a good behaviour bond of 4 months commencing 28 July 2000

Key Takeaways

  • This was the first appeal from a Drug Court sentence under the Drug Court Act 1998 to reach the Court of Criminal Appeal, requiring the court to map the interaction between that Act and the Criminal Appeal Act 1912.
  • Under section 5AA(3A) of the Criminal Appeal Act 1912, fresh, additional, or substituted evidence may only be admitted on a Drug Court sentence appeal where the court is satisfied special grounds exist; if admitted, the rehearing proceeds on both the original and the fresh evidence.
  • Section 5AA(4) has an ambulatory operation: the question of what the Drug Court "could have made" is assessed at the time of the rehearing before the Court of Criminal Appeal, not at the time the Drug Court originally imposed the final sentence.
  • The Court of Criminal Appeal held it possessed power to impose a suspended sentence on a Drug Court sentence appeal, rejecting the Crown's narrower construction of section 5AA(4).
  • Where new evidence of rehabilitation emerges by the time of the rehearing, the Court of Criminal Appeal may substitute a suspended sentence even where the Drug Court had imposed an immediate custodial term.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5AA and 5AF
- Drug Court Act 1998 (NSW), sections 6, 7, 8A, 9 and 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 2

Cases:
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683