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Court of Criminal Appeal 26 May 2003

R v Galati

[2003] NSWCCA 148

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUGS GUILTY PLEA UTILITARIAN VALUE PRE

Citation: R v Galati [2003] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 26 May 2003
Judge(s): James J; Smart AJ

Background

The appellant was sentenced in the District Court on four counts of supplying prohibited drugs, including methylamphetamine and MDMA, arising from two separate search warrant executions at his Manly premises in October 2001 and January 2002. The second pair of offences was committed while the appellant was on bail for the first. Acting Judge Shillington imposed an aggregate sentence of four years with a two-year non-parole period.

The appellant had entered guilty pleas at the earliest opportunity in the Local Court. He had also spent approximately one month and twenty-six days in pre-sentence custody following his arrest in October 2001, before being granted bail in December 2001. A second, uninterrupted period of pre-sentence custody ran from his re-arrest on 17 January 2002 until sentencing on 29 August 2002.

The appellant sought leave to appeal on the basis that the sentencing judge had failed to demonstrably account for either the utilitarian value of his early guilty pleas or the first period of pre-sentence custody.

  • Whether the sentencing judge erred by failing to explicitly or demonstrably discount the sentences to reflect the utilitarian value of the appellant's guilty pleas, in accordance with the guideline in R v Thomson; R v Houlton
  • Whether the sentencing judge erred by failing to demonstrably take into account the first period of pre-sentence custody (16 October to 11 December 2001) when structuring the sentences

Decision

On the first ground, the Court of Criminal Appeal noted that Acting Judge Shillington had acknowledged the early guilty pleas but had not quantified any discount and had not stated that the plea had been taken into account in the way Thomson; Houlton requires. Following the approach taken in R v Lloyd, the Court found that, absent any statement or discernible inference from the sentence length that a discount was applied, it must be taken that no discount was given. This was a sentencing error.

On the second ground, the Court observed that the sentencing structure adopted below commenced the sentences from 18 January 2002, which accounted for the second period of pre-sentence custody but not the first. The structure contained no mechanism by which the earlier October-to-December 2001 custody period could be treated as having been served. The Court was not satisfied that the overall length of the sentences provided a sufficient basis to infer that the first period had been taken into account.

The Court granted leave to appeal and allowed the appeal. Rather than imposing shorter sentences, it restructured the commencement dates to reflect both the utilitarian value of the guilty pleas (treating the overall sentence length as appropriate once that discount was considered) and to demonstrably account for the first period of pre-sentence custody by commencing the relevant sentences from 23 November 2001.

Orders Made

  • Leave to appeal granted
  • Appeal against sentences allowed
  • Sentences imposed by Acting Judge Shillington on 29 August 2002 quashed
  • In lieu, the following sentences imposed:
  • Count 1: Fixed term of one year commencing 23 November 2001
  • Count 2: Fixed term of one year commencing 23 November 2001
  • Count 3: Three years imprisonment with a non-parole period of one year commencing 23 November 2002
  • Count 4: Fixed term of one year commencing 23 November 2002
  • Order for release on parole on 23 November 2003

Key Takeaways

  • Under the guideline in R v Thomson; R v Houlton, a sentencing judge must explicitly state that a guilty plea has been taken into account; failure to do so will generally be taken to indicate the plea was not given weight.
  • The Court of Criminal Appeal confirmed that where neither the remarks on sentence nor the length of sentences imposed permits an inference that a utilitarian discount was applied, an appellable error is established.
  • A sentencing court's failure to demonstrably account for a discrete period of pre-sentence custody constitutes a separate sentencing error, even where a later, longer period of pre-sentence custody has been addressed through sentence commencement dates.
  • Restructuring the commencement dates of sentences is an available method of correcting errors relating to pre-sentence custody, without necessarily reducing the overall sentence length.
  • In re-sentencing, the Court of Criminal Appeal treated the original sentence lengths as appropriate in substance but adjusted the start dates to cure both identified errors simultaneously.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Drug Misuse and Trafficking Act (NSW), s 25(1)

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Lloyd [2003] NSWCCA 49
- R v Howard [2001] NSWCCA 309
- R v McHugh (1985) 1 NSWLR 588
- R v Phillips; R v Simpson [2002] NSWCCA 167