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Court of Criminal Appeal 15 October 2001

Regina v Scott

[2001] NSWCCA 418

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE SOME FACTORS FAVOURING OFFENDER SPECIAL CIRCUMSTANCES NO SPECIAL MATTER OF PRINCIPLE

Citation: Regina v Scott [2001] NSWCCA 418
Court: New South Wales Court of Criminal Appeal
Date: 15 October 2001
Judge(s): Grove J, Bell J

Background

The applicant was convicted in the Parramatta District Court after pleading guilty to supply of a prohibited drug (heroin), following a lengthy procedural history. The original offences occurred between January and August 1991. Police became aware of the applicant's involvement around 1994, and he was charged in 1996. A first trial before the District Court resulted in conviction and a seven-year sentence, but the applicant succeeded on appeal and a new trial was ordered.

At the retrial, the Crown added a lesser alternative charge to the indictment, and the applicant pleaded guilty to that charge. By the time he appeared for sentencing in early 2001, approximately ten years had elapsed since the offences were committed.

The sentencing judge, Nield DCJ, imposed a sentence of four years and nine months with a non-parole period of three and a half years, applying a 20 percent discount for the guilty plea. The applicant sought leave to appeal on the grounds that insufficient weight was given to the staleness of the offence, that the judge erred in finding no special circumstances to vary the statutory ratio, and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the ten-year delay between the commission of the offence and the imposition of sentence.
  • Whether the Crown Prosecutor's statements at the sentencing hearing created a legitimate expectation that the judge was bound to consider before departing from a more lenient approach.
  • Whether the sentencing judge erred in declining to find special circumstances justifying a reduction in the non-parole period relative to the total sentence.
  • Whether the overall sentence was manifestly excessive.

Decision

On the question of delay, the Court of Criminal Appeal accepted that the ten-year gap between offence and sentence rendered the offence "stale" in sentencing terms. Grove J noted that while the initial three-to-four-year period before detection was not itself a mitigating factor, the total delay was relevant and should have operated in the applicant's favour. Despite acknowledging the delay in his remarks, the sentencing judge appeared to have given no actual reduction for it beyond the guilty plea discount.

On the Crown Prosecutor's statements, the Court found that the comments made at the outset of proceedings had inspired a reasonable expectation that the sentence might reflect the time already served. The sentencing judge initially indicated he was considering that proposition but ultimately imposed a substantially heavier sentence without specifically explaining his departure from it. The Court held this was a matter that warranted intervention, though it stopped short of finding the sentence manifestly excessive on its own terms.

Regarding special circumstances, Grove J found that the sentencing judge erred in concluding none existed. The applicant was 44 years old, had not appeared before courts on drug matters in the preceding decade, and there was evidence suggesting a genuine, if marginal, prospect of rehabilitation. The Court characterised the applicant as someone who may have "run out of steam" with respect to his earlier offending lifestyle. These factors, taken together, were sufficient to establish special circumstances, though Grove J described the conclusion as a marginal one.

The Court did not accept the ground of manifest excess in isolation. A starting point of six years, discounted for the guilty plea, was considered within the range of a sound sentencing discretion for this type of offence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed below quashed.
  • In lieu, imprisonment for four years and nine months imposed on the second count, commencing 15 March 1999.
  • Non-parole period of two years and eight months, commencing 15 March 1999 and expiring 14 November 2001, on which date the applicant would be eligible for parole consideration.

Key Takeaways

  • A ten-year gap between commission of an offence and sentencing qualifies the offence as "stale" and must operate as a genuine factor in the applicant's favour, not merely be acknowledged in passing.
  • Where a Crown Prosecutor makes statements at a sentencing hearing that reasonably inspire an expectation of a particular sentencing approach, a sentencing judge who departs from that approach without specific reasons risks error.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established, even marginally, by a combination of age, a relative absence of reoffending over a sustained period, and evidence of rehabilitation prospects.
  • In dismissing the manifest excess ground, the Court confirmed that a six-year starting point for a non-commercial heroin supply offence, subject to a guilty plea discount, was not outside the range of sound discretion.
  • The Court of Criminal Appeal characterised its intervention as sentence reconstruction, not a finding of principle, expressly noting there was no special matter of principle arising from the decision.

Legislation and Cases Referenced

The judgment does not cite specific legislation or cases by name in the portions provided. The catchwords and the body of the judgment refer to:

  • The statutory ratio between non-parole periods and head sentences (the relevant Crimes Act provisions governing parole and special circumstances, applicable in New South Wales at the time).
  • The procedural history of the applicant's earlier appeal to the Court of Criminal Appeal (unnamed in the text).