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Court of Criminal Appeal 22 March 2002

Regina v Pedavoli

[2002] NSWCCA 87

Also reported as (2002) 128 A Crim R 137
Drugs
PRINCIPLE OF TOTALITY SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v Pedavoli [2002] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 22 March 2002
Judge(s): Sheller JA, Grove J, Simpson J

Background

The respondent pleaded guilty in the District Court to participation in the manufacture of a large commercial quantity of amphetamine over a period of approximately four and a half months in 1999. His role was subordinate to the principal organiser, though he occupied premises used to store drugs, purchased chemicals used in manufacture, and made arrangements to procure pill presses. Critically, he committed this offence while on bail for two earlier serious drug charges involving the supply of heroin and cocaine.

The earlier charges had been finalised separately by Viney DCJ in May 2001, who imposed concurrent sentences of four and five years respectively (non-parole periods of two and two and a half years), commencing March 1999. The respondent had a Rohypnol dependency, which the sentencing judge found had been exploited by the principal to draw him into the scheme.

Norrish DCJ sentenced the respondent to four years imprisonment with a non-parole period of fifteen months, commencing 1 September 2001, to follow the earlier sentences. The Crown appealed on the basis that this sentence was manifestly inadequate.

  • Whether the sentence imposed for the methylamphetamine manufacturing offence was manifestly inadequate in all the circumstances
  • Whether the sentencing judge properly applied the totality principle when sentencing for an offence committed while the respondent was on bail for earlier drug offences
  • Whether the aggravating feature of offending on bail was given sufficient weight

Decision

Simpson J (Sheller JA and Grove J agreeing) held that the Crown appeal succeeded and that the sentence was manifestly inadequate. While the sentencing judge had extracted passages from Viney DCJ's remarks and referred to the earlier sentences, the Court of Criminal Appeal was satisfied that the totality of the respondent's criminality was either overlooked or given inadequate weight in practice.

On the totality principle, the Court clarified that when sentencing for a later offence to be served cumulatively on existing sentences, the court must not treat the principle as an occasion to interfere with or review the earlier sentences. The earlier sentences stand as appropriate for those offences. The totality principle informs the sentence for the later offence by identifying the full extent of the offender's criminality, allowing the sentencing court to make a properly informed decision, but it does not operate to reduce the later sentence below what the later offending warrants.

The Court found that offending committed while on bail for serious drug offences of a similar nature demanded significantly greater weight in the sentencing process. The combination of the serious objective circumstances of the later offence and the aggravating feature of bail offending meant the sentence imposed could not be sustained.

Because the appeal was a Crown appeal, the Court acknowledged the well-established principle that an offender resentenced following a successful Crown appeal is entitled to have the appellate court select a sentence at the lower end of the available range. The Court also accepted the sentencing judge's finding of special circumstances justifying departure from the standard non-parole period ratio.

Orders Made

  • The appeal was allowed
  • The respondent was resentenced to imprisonment for eight years with a non-parole period of three years and nine months, commencing 4 September 2001

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle, when applied to a later sentence imposed cumulatively on existing sentences, does not authorise reducing the later sentence below what that offending objectively warrants; it identifies the full picture of an offender's criminality to inform the sentencing exercise.
  • Committing a serious drug offence while on bail for earlier drug offences of a similar nature is a significant aggravating feature that must be given real and adequate weight in the sentencing process.
  • A sentencing judge who refers to earlier sentences in remarks but fails to reflect the totality of criminality in the sentence actually imposed may still fall into error.
  • On a successful Crown appeal, the appellate court selects a sentence at the lower end of the available range rather than what would have been imposed at first instance, in recognition of the respondent's position.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances justifying departure from the standard non-parole period ratio was preserved on resentencing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 33(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Hajjo, NSWCCA, unreported, 31 August 1992
- R v White, NSWCCA, unreported, 20 August 1998