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Court of Criminal Appeal 12 October 2001

R v Hanley

[2001] NSWCCA 350

Also reported as 125 A Crim R 268
Drugs
SENTENCING REPEAT OFFENCE SENTENCES PARTIALLY CUMULATIVE SENTENCES NOT EXCESSIVE

Citation: R v Hanley [2001] NSWCCA 350
Court: Court of Criminal Appeal, New South Wales
Date: 12 October 2001
Judge(s): Dowd J; Smart AJ

Background

The applicant was convicted after a five-week trial alongside two co-accused of manufacturing and supplying methylamphetamine at commercial quantities. The offences occurred in 1994 at premises under police observation in Beaconsfield, where police found large quantities of chemicals, equipment, and approximately 31 bags of methylamphetamine. The applicant was found to have been actively involved in the manufacturing process.

These convictions represented the applicant's second set of offences of a similar kind. He had previously been convicted of knowingly taking part in the supply of a large commercial quantity of methylamphetamine arising from conduct in 1992, for which the Court of Criminal Appeal had already increased his sentence on appeal.

The District Court sentenced the applicant to ten years imprisonment with a minimum term of seven years and six months, commencing 6 April 1999. That sentence ran partially concurrent with the tail end of the earlier sentence. The applicant sought leave to appeal the sentence on two grounds.

  • Whether the sentencing judge erred in finding the applicant was primarily responsible for the manufacturing process, given a factual inaccuracy in the remarks on sentence describing his prior conviction as one for "manufacture" rather than "supply"
  • Whether the sentences were manifestly excessive, particularly having regard to the partial accumulation of the 1994 sentences over the 1992 sentences and the treatment of special circumstances

Decision

On the first ground, the Court accepted that the sentencing judge made a factual error in describing the applicant's prior conviction as one for manufacturing methylamphetamine, when it was in fact for supply. However, the Court found this was a parenthetical inaccuracy that did not infect the substance of the sentencing remarks. The earlier proceedings had established that the applicant was aware of the methylamphetamine component of the enterprise and contributed practical skills to it, which supported the sentencing judge's broader finding that the applicant was centrally involved in the 1994 manufacturing operation. No appealable error was established on this ground.

On the second ground, the Court examined whether the partial accumulation of the sentences for the 1992 and 1994 offences gave rise to special circumstances justifying a different ratio between the minimum term and the additional term. The Crown conceded, and the Court confirmed, that the imposition of cumulative or partially cumulative sentences will ordinarily constitute special circumstances. The effective combined minimum term, allowing for the overlap, was approximately 8 years 4 months and 24 days, against an effective total sentence of approximately 10 years 10 months and 24 days.

The Court calculated that the departure from the usual three-to-one ratio between minimum term and additional term amounted to only around two months and three days. The Court declined to intervene on this basis, characterising any adjustment as mere "tinkering." It also noted that the sentencing judge's decision to backdate the commencement of the 1994 sentences to April 1999 was itself a lenient exercise and more than compensated for the minor departure from the conventional ratio.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A factual inaccuracy in a sentencing judge's remarks will not constitute reversible error where the correct facts are otherwise evident from the body of the sentencing remarks and the error did not materially affect the sentence imposed.
  • The Court of Criminal Appeal confirmed, consistent with a line of authority including R v Moffitt, R v Simpson, R v Close, R v Pollock, and R v King, that the imposition of cumulative or partially cumulative sentences will normally constitute special circumstances warranting a departure from the standard three-to-one minimum-to-additional-term ratio.
  • Where the practical departure from the three-to-one ratio is negligible (here, approximately two months), appellate intervention is not warranted, as adjusting the sentence for so small a variance amounts to tinkering.
  • Backdating the commencement of a sentence to an earlier date is a recognised mechanism for giving effect to the totality principle where sentences overlap, and can offset an otherwise technical departure from the usual sentencing ratio.
  • In dismissing the appeal, the Court affirmed that a ten-year sentence for a repeat offender convicted of large-scale commercial manufacture and supply of methylamphetamine, carrying a maximum of life imprisonment, was not excessive in the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 442B
- Crimes (Sentencing Procedures) Act 1999 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 33(2)(a)
- Sentencing Act 1989 (NSW), s 5

Cases
- R v Close (1992) 65 A Crim R 55
- R v Hanley (Unreported, NSWCCA, 9 October 1998)
- R v King (Unreported, NSWCCA, 18 August 1999)
- R v Moffitt (1990) 20 NSWLR 114
- R v Pollock (1993) 67 A Crim R 166
- R v Simpson (1992) 61 A Crim R 59