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2
Court of Criminal Appeal 6 February 2002

R v Loh

[2002] NSWCCA 23

Also reported as (2002) 127 A Crim R 577
Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG PRINCIPLE OF TOTALITY PRINCIPLE OF DOUBLE JEOPARDY APPEAL ALLOWED.

Citation: R v Loh [2002] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 6 February 2002
Judges: Wood CJ at CL, Sully J, Dowd J

Background

The respondent pleaded guilty in the District Court to four counts of drug supply offences under the Drug Misuse and Trafficking Act 1985, involving commercial quantities of methylamphetamine and MDMA (Ecstasy), as well as smaller supply charges. The offending arose from a police surveillance operation on 9 January 2001, during which police observed the respondent distributing drugs and located further quantities, along with approximately $93,000 in cash, during searches. A small amount of cannabis was also taken into account on a schedule.

At the time of the offending and sentencing, the respondent was on parole for serious Commonwealth drug importation offences, for which he had been sentenced in 1992 to twelve years imprisonment with a seven-year non-parole period. He had previously been convicted and formally cautioned during his parole period for a further supply offence in August 2000.

District Court Judge Coorey sentenced the respondent to a head sentence of six years with a four-year non-parole period on the principal count, with concurrent fixed terms on the remaining counts. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the sentences were inadequate.

  • Whether the sentencing judge gave sufficient weight to the respondent's reoffending while on parole for serious Commonwealth drug offences
  • Whether the principles of totality and double jeopardy were correctly applied, particularly in light of the automatic revocation of the Commonwealth parole upon the new sentences being passed
  • Whether the sentencing judge's discounts for the guilty plea and cooperation with police were appropriate
  • Whether the Court of Criminal Appeal should exercise its discretion to intervene and re-sentence, and if so, what sentences were appropriate

Decision

The Court of Criminal Appeal found that Judge Coorey had erred by giving insufficient weight to the respondent's conduct in committing serious drug supply offences while on parole for analogous Commonwealth drug offences. The Court noted that the respondent had already received a formal written caution following a prior supply conviction during his parole period, making the gravity of the further offending particularly significant.

The Court accepted that the sentencing judge had correctly applied discounts for the guilty plea and the respondent's cooperation with police, including his disclosure of drug locations during the execution of a search warrant. The Court also found no error in the judge's treatment of the subjective circumstances or in the finding of special circumstances justifying a longer-than-standard ratio between parole and head sentence.

On the double jeopardy principle (which, in Crown appeals, ordinarily calls for any re-sentence to sit toward the lower end of the appropriate range), the Court was not persuaded that this or any other factor warranted declining to intervene. Having found error in the original sentencing, the Court quashed the sentences below and proceeded to re-sentence the respondent.

The Court directed that all sentences run concurrently, consistent with a concession made at first instance, and retained the finding of special circumstances. The re-sentence increased the head sentence on the principal count to seven and a half years and adjusted the non-parole periods and fixed terms on the remaining counts accordingly.

Orders Made

  • Sentences imposed below quashed
  • Count 1 (commercial quantity methylamphetamine): imprisonment for 7 years and 6 months, commencing 9 January 2001, expiring 8 July 2008; non-parole period of 5 years, expiring 8 January 2006
  • Counts 2 and 3 (MDMA supply): fixed terms of 4 years each, commencing 9 January 2001, expiring 8 January 2005
  • Count 4 (deemed supply, commercial quantity MDMA): imprisonment for 6 years commencing 9 January 2001; non-parole period of 4 years, expiring 8 January 2005
  • All sentences to be served concurrently
  • Earliest parole eligibility: 9 January 2006
  • Finding of special circumstances retained

Key Takeaways

  • Reoffending whilst on parole for serious drug offences is a weighty aggravating factor that a sentencing court must address adequately, particularly where the offender has previously been cautioned about the consequences of further offending.
  • The automatic revocation of Commonwealth parole under s 19AQ of the Crimes Act 1914 (Cth), triggered by the imposition of new state sentences, is a relevant sentencing consideration, but does not of itself excuse insufficient weight being given to the gravity of the parole breach.
  • On a Crown appeal, the double jeopardy principle ordinarily requires that any re-sentence fall toward the lower end of the available range, consistent with the approach in Dinsdale v The Queen and subsequent authority, but this does not preclude intervention where a material sentencing error is established.
  • Discounts for guilty plea and cooperation with police were properly applied where the respondent pleaded guilty at an early stage and actively assisted police, including by disclosing the location of drugs in his premises.
  • A finding of special circumstances justifying a non-parole period proportionally shorter than the statutory norm can properly rest on the offender's rehabilitation prospects and the need for supervised reintegration into the community following a second significant term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 19AQ, s 19AS
- Crimes (Sentencing Procedure) Act 1999, s 44
- Criminal Appeal Act 1912, s 5D
- Drug Misuse and Trafficking Act 1985, ss 10, 25

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Griffiths v The Queen (1977) 137 CLR 293
- House v The King (1936) 55 CLR 409
- Pearce v The Queen (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Gould [1999] NSWCCA 177
- R v Kaiva, NSWCCA, 9 November 1998
- R v Kalache (2000) 111 A Crim R 152
- R v Marie (1983) 13 A Crim R 440
- R v Moffitt (1990) 20 NSWLR 114
- R v Morgan (1993) 70 A Crim R 368
- R v Readman (1990) 47 A Crim R 181
- R v Simpson [2001] NSWCCA 534
- R v Thomson and Houlton (2000) 49 NSWLR 383