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Court of Criminal Appeal 21 August 2000

R v Virgin

[2000] NSWCCA 307

Drugs

Citation: R v Virgin [2000] NSWCCA 307
Court: New South Wales Court of Criminal Appeal
Date: 21 August 2000
Judge(s): James J; Bell J

Background

The applicant, a 44-year-old man with a lengthy history of drug abuse and criminal offending, pleaded guilty in the District Court at Gosford to supply of a prohibited drug (methylamphetamine) in a commercial quantity. The offence came to light after police were called to a McDonald's restaurant where the applicant was behaving in an erratic and intoxicated manner. A search revealed he was carrying 376.8 grams of methylamphetamine and 14.1 grams of cannabis, along with identification cards and goods apparently belonging to others.

The applicant gave evidence that he had stolen the drugs from his supplier the previous evening while affected by a cocktail of substances including Rohypnol, amphetamines, and alcohol. He asked the sentencing judge to take into account four further charges on a Form 1, including possession of the amphetamines, cannabis, and two counts of goods in custody.

At sentence, the District Court imposed a minimum term of 3 years and 9 months penal servitude with an additional term of 1 year and 3 months. The applicant sought leave to appeal on several grounds, including that the sentence commenced from the wrong date, that insufficient weight was given to his assistance to authorities, and that the overall sentence was manifestly excessive.

  • Whether the sentence was expressed to commence from the correct date, given the applicant had been in custody from 8 May 1999
  • Whether the sentencing judge placed too much weight on the applicant's criminal history
  • Whether insufficient weight was given to the applicant's assistance to authorities and the contents of psychological reports
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio between sentence and non-parole period
  • Whether the overall sentence was manifestly excessive in the circumstances

Decision

The Crown conceded at the outset that the sentence had been expressed to commence on 18 May 1999, when the applicant had in fact been in custody from 8 May 1999. This error alone justified granting leave and allowing the appeal to correct the commencement date.

Bell J (with whom James J agreed) went further and considered the broader sentencing challenge. Her Honour assessed the weight given to the applicant's assistance to authorities and to the psychological evidence from Ms Matsuo and Ms Gleeson, which suggested the applicant had developed some insight into his difficulties and expressed a willingness to engage in rehabilitation programs.

On the question of special circumstances, Bell J acknowledged that a combination of drug and alcohol history, developing insight, and willingness to undertake counselling may potentially amount to special circumstances. However, her Honour was not persuaded that special circumstances had been established in this case. The sentencing judge had seen the applicant give evidence, accepted his remorse, but remained cautious about rehabilitation prospects, and the Court of Criminal Appeal declined to disturb that assessment.

The Court ultimately quashed the original sentence and imposed a revised sentence of 3 years imprisonment with a non-parole period of 2 years and 3 months, both commencing from 8 May 1999, the correct date of the applicant's arrest.

Orders Made

  • Application for leave to appeal allowed
  • Appeal allowed
  • Sentence imposed on 19 November 1999 in the District Court at Gosford quashed
  • In lieu thereof, the applicant sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months, commencing 8 May 1999
  • Earliest date of entitlement to release on parole fixed at 7 August 2001
  • Direction pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 that the offender be released on parole at the end of the non-parole period

Key Takeaways

  • A sentence must be expressed to commence from the actual date of the offender's arrest where the entire period of pre-sentence custody is referable to the subject charge; failure to do so constitutes a correctable error on appeal.
  • The Court of Criminal Appeal confirmed that evidence of an offender's willingness to engage in counselling, combined with developing insight, does not invariably establish special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Departing from the statutory ratio between the head sentence and the non-parole period requires affirmative establishment of special circumstances; the burden rests on the applicant.
  • Where a sentencing judge has had the benefit of observing the offender give evidence and has made credibility-based findings, an appellate court will be slow to disturb those findings on a severity appeal.
  • Including a "backup" possession charge on a Form 1 where the same subject matter forms the basis of the indictment count is an irregularity, though one that will not affect the outcome unless actual prejudice is demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2), 50
- Criminal Procedure Act 1986 (NSW), s 21 (as then in force)

Cases
- R v Bloomfield (1998) 44 NSWLR 734
- R v Heard [2000] NSWCCA 107
- R v Pilley (1991) 56 A Crim R 202