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Court of Criminal Appeal 18 December 2002

REGINA v WONG

[2002] NSWCCA 527

Also reported as (2002) 137 A Crim R 120
Drugs

Citation: [2002] NSWCCA 527
Court: NSW Court of Criminal Appeal
Date: 18 December 2002
Judge(s): Adams J; Smart AJ

Background

The applicant was convicted of two drug supply offences arising from events in April 1992. The first count involved knowingly taking part in the supply of one ounce of heroin; the second involved taking part in the supply of approximately one pound of heroin for $95,000. The applicant had played an active and major role in both transactions, procuring the heroin and receiving the purchase money before fleeing while his co-offender was arrested.

The applicant was arrested on 28 April 1992, committed for trial in November 1993, but did not face trial until May 2000 -- over eight years after his arrest. The trial judge found that the overwhelming bulk of this delay was not attributable to the applicant.

At first instance, the District Court sentenced the applicant to a fixed term of two years on count one and four years with a three-year non-parole period on count two, to be served cumulatively. The effective result was a six-year total sentence with parole eligibility only after five years. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in calculating the relationship between the head sentence and the non-parole period, particularly given the cumulative structure of the sentences
  • Whether the combination of cumulative sentences and the lengthy pre-trial delay constituted "special circumstances" justifying a shorter non-parole period
  • What, if any, reduction in the non-parole period was warranted by the delay of approximately eight years between arrest and trial

Decision

The Court of Criminal Appeal found that the sentencing judge had made a calculation error. The judge had apparently intended the two-year fixed term for count one to function effectively as a minimum term, but the cumulative structure meant the applicant would not be eligible for parole until he had served five of six years. This departed substantially from the usual proportion between an overall sentence and a non-parole period, and there was no proper basis in the facts to justify such a departure.

Adams J concluded the sentence below erred in law, whether the judge's reasoning was mistaken or reflected an intentional but unjustified departure from established practice. This made resentencing by the Court of Criminal Appeal necessary.

On the question of special circumstances, Adams J held that the combination of cumulative sentences and the unconscionable pre-trial delay -- conservatively over seven years not attributable to the applicant -- did give rise to special circumstances warranting a reduced non-parole period. Smart AJ agreed that the accumulation of sentences alone constituted special circumstances, though he was more cautious about treating delay as independently justifying a reduction, noting that no evidence of hardship from the delay had been led at first instance and that delay does not necessarily disadvantage an accused.

Both judges agreed that no warrant existed to depart from the usual three-to-one ratio across the sentences overall, and the Court resentenced the applicant accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence passed below quashed
  • On count one: two years imprisonment commencing 23 May 2000, expiring 22 May 2002
  • On count two: four years imprisonment commencing 22 May 2002
  • The applicant to be eligible for release to parole on 22 May 2004

Key Takeaways

  • A mathematical or structural error in calculating the relationship between a head sentence and a non-parole period, particularly in cumulative sentencing, can constitute an error of law warranting appellate intervention.
  • Cumulative sentences that produce a non-parole period substantially disproportionate to the overall term require proper justification; absent special circumstances, the usual ratio between total sentence and parole eligibility should be maintained.
  • Under the approach confirmed in this decision, the accumulation of sentences can itself constitute special circumstances justifying a shorter non-parole period.
  • The Court of Criminal Appeal treated the role of delay in sentencing with some caution. Adams J recognised that hardship from delay is often a necessary element, but acknowledged rare cases where delay is so unconscionable that a reduction is warranted as a matter of justice even without demonstrable hardship. Smart AJ declined to assume hardship where none was proved.
  • In dismissing any suggestion of leniency based on prior character, contrition, or assistance to authorities, the court noted those factors were simply not present on the facts.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 44

Cases:
- Regina v GDR (1994) 35 NSWLR 376
- R v Bragias (1997) 92 A Crim R 330
- Regina v Fahda [1999] NSWCCA 267