Citation: [2001] NSWCCA 480
Court: NSW Court of Criminal Appeal
Date: 19 November 2001
Judges: Spigelman CJ, Sully J, Greg James J
Background
The applicant pleaded guilty in the Campbelltown District Court to one count of supplying cannabis under the Drug Misuse and Trafficking Act 1985, with a further offence of cultivating a prohibited plant taken into account on a Form 1. Police had found an extensive cannabis cultivation operation across two flats at the applicant's Fairfield premises, including 169 plants averaging one metre in height and over 5,000 grams of cannabis leaf.
The sentencing judge imposed 20 months' imprisonment with a non-parole period of 15 months. Critically, the judge did not include a direction that the applicant be released at the expiration of the non-parole period, which both parties agreed was required by statute.
The applicant sought leave to appeal on four grounds: the adequacy of the guilty plea discount, the weight given to subjective features, the failure to separately consider suspending the sentence, and the refusal to find special circumstances justifying a shorter non-parole period.
Legal Issues
- Whether the 16% discount applied for the guilty plea was adequate under the range established in R v Thomson and Houlton
- Whether the sentencing judge gave effective weight to the applicant's subjective circumstances (family hardship, personal history, psychological report)
- Whether the sentencing judge was required to separately determine the question of whether to suspend the sentence under s 12(1) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge erred in declining to find "special circumstances" to justify a shorter non-parole period
- Whether the orders required correction to include a direction for parole release
Decision
On the guilty plea discount, Spigelman CJ confirmed that a discount falling within the 10 to 25 per cent range identified in Thomson and Houlton is within the sentencing judge's discretion. Because the plea was not entered at the earliest opportunity and the case was not particularly complex, a 16% discount was well within that discretion. This ground was dismissed.
On subjective features, the Court of Criminal Appeal rejected the submission that the sentencing judge had reduced the applicant's personal circumstances to a single, narrow consideration. The sentencing judge had set out the subjective circumstances across more than two pages of reasons before arriving at the starting point of two years, expressly noting the pre-sentence report and psychological evidence. The Court found the characterisation of the reasons as a bare "equation" to be incorrect.
On the suspension question, Spigelman CJ distinguished the NSW position from the West Australian legislation considered in Dinsdale v The Queen. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 requires only that a court not impose imprisonment unless satisfied no other sentence is appropriate. The sentencing judge gave express reasons for rejecting suspension, finding full-time custody was necessary given the applicant's substantial involvement in drug supply. Referring to sentencing authorities that predated reintroduction of suspended sentences did not constitute error, because the judge plainly intended to address and reject the suspension submission. Nothing more was required.
On special circumstances, the Court accepted that the factors raised (rehabilitation potential, early plea, and family hardship) were capable in principle of constituting special circumstances, but noted they had already been taken into account in fixing the head sentence. Citing the reasoning in R v Keong, Spigelman CJ observed that the finding of special circumstances involves a factual element and that the appellate court should be slow to intervene. No error was established in the sentencing judge's refusal to find special circumstances. The Court did, however, vary the orders to add the mandatory parole release direction that had been omitted.
Orders Made
- Leave to appeal against sentence granted.
- The order of Luland DCJ of 23 February 2001 varied by adding a direction that the applicant be released to parole on 22 May 2002.
- Appeal otherwise dismissed.
Key Takeaways
- A guilty plea discount of 16% fell within the 10 to 25 per cent range in Thomson and Houlton, and the precise level within that range remains a matter for the sentencing judge's discretion, having regard to timing and the complexity of the avoided trial.
- Sentencing reasons must be read as a whole: the Court of Criminal Appeal rejected the argument that isolated passages indicated subjective features had been ignored, where the judge had expressly addressed those features earlier in the same reasons.
- Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to consider whether any sentence other than imprisonment is appropriate; express reasons for rejecting that option satisfy the obligation, without necessarily requiring a formulaic two-step analysis.
- The finding on special circumstances involves an element of factual assessment, and the Court of Criminal Appeal confirmed it will be slow to disturb such a finding where the relevant matters were squarely before the sentencing judge.
- Where a sentencing court is required by s 50(1) of the Crimes (Sentencing Procedure) Act 1999 to direct release at the expiration of the non-parole period, omission of that direction is an error that must be corrected on appeal, even where the sentence itself is otherwise upheld.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12(1), 50(1)
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Blackman and Walters [2001] NSWCCA 121
- Dinsdale v The Queen (2000) 202 CLR 321
- R v JCE [2000] NSWCCA 498
- R v Keong [2001] NSWCCA 416