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Court of Criminal Appeal 20 February 2001

R v Atkin

[2001] NSWCCA 54

Drugs

Citation: R v Atkin [2001] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 20 February 2001
Judges: Mason P, Whealy J, Howie J

Background

The respondent pleaded guilty in the Moree District Court to four counts of supplying methylamphetamine, contrary to the Drug Misuse and Trafficking Act 1985. The offences included a possession-for-supply charge from November 1998 and three separate sales of small quantities of methylamphetamine to an undercover officer over three consecutive days in February 2000, all committed while the respondent was on bail for the first offence.

The sentencing judge, Bellear DCJ, backdated all four sentences to commence on 23 February 2000, the date the respondent entered custody for the drug offences. That date also happened to be the commencement date for two separate terms of imprisonment for driving whilst disqualified, imposed in the Local Court.

The practical effect of backdating was that the drug sentences ran concurrently with the driving sentences, largely absorbing them. The respondent would have been required to serve only approximately forty additional days beyond the end of the second driving sentence before being released to parole. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the sentences were inadequate.

  • Whether the sentencing judge erred by backdating the drug supply sentences to the date the respondent entered custody, which was also the date from which the driving offence sentences ran
  • Whether making the drug sentences concurrent with the unrelated driving offence sentences rendered the total sentence manifestly inadequate
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeal rather than resentence the respondent

Decision

The Court found that Bellear DCJ did err in backdating the drug sentences. By doing so, the sentences effectively swallowed up the Local Court sentences for the driving offences, rendering those penalties meaningless as punishment for separate and distinct criminal conduct. Howie J noted that the drug offences, three of which were committed while the respondent was already on bail, called for a sentence that addressed both specific and general deterrence. The minimum period to be served before parole release was, in his Honour's view, inadequate to reflect that seriousness.

However, the Court declined to act on that finding of error and exercised its discretion to dismiss the Crown appeal. The respondent was due for release to parole within three days of the hearing. Any resentencing, with the added discount for "double jeopardy" (the principle that an offender facing a Crown appeal on adequacy grounds receives some reduction in any increased sentence), would not produce a result sufficient to justify prolonging the respondent's imprisonment and defeating his legitimate expectation of imminent release.

An additional factor weighed in favour of dismissal. At the sentencing hearing, the Crown had not clearly opposed the backdating when it had the opportunity. The defence had foreshadowed the backdating submission, and the Crown's response was equivocal rather than a clear objection. The Court considered this conduct may have misled the sentencing judge into thinking the approach was appropriate.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • A sentencing court errs by backdating a sentence for serious drug supply offences so that it runs concurrently with unrelated sentences for separate offending, effectively nullifying those other sentences as instruments of punishment.
  • Where offences are committed while an accused is on bail, the sentencing court must impose a penalty that adequately reflects the additional seriousness of that conduct and the need for both specific and general deterrence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that it retains a discretion to decline to correct a sentencing error when resentencing would be disproportionate to the benefit achieved, particularly where the offender faces imminent parole release and has formed a legitimate expectation of that outcome.
  • The double jeopardy principle operates to moderate any increased sentence imposed on a successful Crown appeal, and the Court may take the resulting modest practical effect into account when deciding whether to intervene at all.
  • A failure by the Crown to clearly articulate its objection to a proposed sentencing approach at the original hearing can weigh against the grant of relief in a subsequent Crown appeal, particularly where the Crown's equivocal stance may have influenced the sentencing judge's reasoning.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50(1)