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14
Court of Criminal Appeal 13 August 2002

R v McVittie

[2002] NSWCCA 344

Drugs
CROWN APPEAL WAS ON PAROLE FOR PREVIOUS DRUG OFFENCE PAROLE PERIOD ORDER FOR PERIODIC DETENTION SENTENCE MANIFESTLY LENIENT PARTICULAR ERRORS IN SEEING SELF

Citation: R v McVittie [2002] NSWCCA 344
Court: New South Wales Court of Criminal Appeal
Date: 13 August 2002
Judges: Giles JA; Wood CJ at CL; Levine J

Background

The respondent pleaded guilty to conducting a commercial drug supply business over approximately two months in late 1999, selling methylamphetamine and cannabis leaf to multiple customers, including on-sellers. He admitted undertaking the operation for profit. At the time of the offending, he was on parole for earlier drug supply convictions and had a lengthy criminal history.

He was arrested in December 1999 and spent nearly 15 months in pre-sentence custody before obtaining bail in February 2001. Following contested committal proceedings, he indicated a guilty plea approximately one week before his trial date in June 2002, with the plea formally entered on 3 June 2002.

The District Court sentenced him to three years imprisonment with a two-year non-parole period, backdated to January 2001, and ordered that the balance remaining from sentencing day be served by way of periodic detention. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate.

  • Whether the original sentence was manifestly lenient in all the circumstances
  • Whether the sentencing judge erred by characterising self-interested cooperation as genuine contrition
  • Whether a two-month sentencing credit for a reporting condition while on bail was appropriate
  • Whether a court may lawfully order that only part (rather than the whole) of a sentence of imprisonment be served by way of periodic detention

Decision

The Court of Criminal Appeal found the original sentence was manifestly lenient and identified two specific errors in the District Court's approach. First, the sentencing judge treated the respondent's cooperation with authorities as evidence of contrition, when the Court found it was better characterised as self-interest. Genuine contrition and calculated cooperation are not equivalent, and conflating them led to a discount the respondent was not entitled to.

Second, the District Court credited the respondent with the equivalent of two months' imprisonment for his daily reporting condition while on bail. The Court found this was an error: while a reporting condition is a constraint on liberty, it does not equate to imprisonment and does not ordinarily attract a credit expressed in custodial terms of that magnitude.

On the periodic detention question, the Court noted a real doubt about whether a sentencing court can lawfully order periodic detention for only part of a sentence of imprisonment, rather than the whole. Sections 6(1) and 70(1) of the Crimes (Sentencing Procedure) Act 1999 appeared to contemplate periodic detention applying to the entirety of a sentence. However, the Court declined to resolve the question conclusively, since the Crown appeal succeeded on separate grounds in any event. Giles JA observed that the question of whether such a hybrid order should be made available as a sentencing option was worthy of consideration by the relevant authorities.

Wood CJ at CL added a broader observation, noting that manifestly lenient sentences serve neither the offender nor the community. A successful Crown appeal means an offender who has begun to rebuild their life faces the prospect of unexpected return to custody, which can itself undermine rehabilitation. The double jeopardy principle typically, though not inevitably, results in a somewhat reduced sentence compared with what should have been imposed originally.

Orders Made

  • Appeal upheld
  • Sentence varied to imprisonment for three years and six months, commencing 5 January 2001 and expiring 4 July 2004
  • Non-parole period of two years and four months, commencing 5 January 2001 and expiring 4 May 2003
  • 5 May 2003 specified as the earliest date on which the respondent may be released on parole

Key Takeaways

  • A sentencing court errs in law if it treats an offender's self-interested cooperation with authorities as equivalent to genuine contrition when determining the discount for remorse.
  • The Court of Criminal Appeal confirmed that a daily reporting condition while on bail does not ordinarily justify a sentencing credit expressed in terms of months of custodial time, at least not at the level granted here.
  • A real question remains unresolved as to whether a court may order periodic detention for only part of a sentence of imprisonment; Giles JA indicated the statutory framework appears to require the order to apply to the whole sentence, while leaving the point open for another case.
  • In upholding the Crown appeal, the Court applied the double jeopardy principle, which typically results in a substituted sentence somewhat below what the court would otherwise have imposed at first instance.
  • Wood CJ at CL observed that manifestly lenient sentences produce significant hardship for offenders when Crown appeals succeed, as the resulting return to custody can disrupt rehabilitation efforts and undermine both the offender's interests and those of the community.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 32(1)(g), 32(1)(h)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(1), 32, 47(2)(a), 47(3), 70(1), 70(3)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Bennett (1996) 85 A Crim R 76
- R v Sallie Ann McGourty (referenced but not cited with neutral citation)