Citation: Regina v Allan Wayne SCHODDE [2003] NSWCCA 164
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2003
Judge(s): Giles JA, Bell J, Carruthers AJ
Background
The applicant was a young man aged 20 at the time of the offending. He was convicted of supplying a prohibited drug (methylamphetamine) on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985, along with three additional counts of supply. The offending was characterised by small quantities of the drug, and the sentencing judge accepted the applicant was a user-dealer supplying to fund his own addiction.
The applicant had spent approximately four and a half months in pre-sentence custody before being sentenced in the District Court. The District Court judge imposed a three-year sentence to be served by way of periodic detention. The applicant subsequently failed to comply with the periodic detention order, which was revoked by the Parole Board, converting the sentence to full-time custody.
The applicant sought leave to appeal out of time on two grounds: that the sentence should have been backdated, and that it was manifestly excessive. During argument, the Court of Criminal Appeal raised a further issue of its own motion concerning the judge's sentencing methodology.
Legal Issues
- Whether the District Court erred by failing to backdate the periodic detention sentence to the date the applicant entered custody
- Whether the three-year sentence for the s 25A(1) offence was manifestly excessive, particularly given the pre-sentence custody and the applicant's youth and personal circumstances
- Whether the sentencing judge erred in law by failing to first fix the term of the sentence before turning to the question of whether that sentence should be served by way of periodic detention
Decision
The Court rejected the backdating ground without detailed argument. The Crimes (Sentencing Procedure) Act 1999 does not permit backdating a sentence ordered to be served by way of periodic detention, and the sentencing order was consistent with s 70(1) of that Act.
The manifest excess ground was also rejected. Sentencing statistics and a review of comparable cases involving s 25A(1) offences did not support a finding that three years periodic detention was so severe as to indicate error. The Court noted the cases demonstrated that even three years' full-time custody would not have been outside the proper range, and the sentencing judge had expressly acknowledged the leniency of the sentence imposed.
However, the Court raised of its own motion a distinct error in the judge's methodology. The sentencing judge had conflated the fixing of the sentence term with the question of the mode of service, reasoning about what "the shortest possible sentence" would be in the context of periodic detention rather than first determining the appropriate term and then separately considering whether periodic detention was warranted. This approach was an error of law.
The Court held it retained jurisdiction to intervene and quash the original sentences despite the revocation of the periodic detention order, and substituted fresh sentences. For the principal count, the Court imposed three years' imprisonment with a non-parole period of eighteen months, dating from 30 October 2002.
Orders Made
- Time extended to bring the application
- Application granted; appeal allowed
- Sentences imposed in the District Court quashed and the following substituted:
- Count 1: three years imprisonment from 30 October 2002 to 29 October 2005, with a non-parole period of eighteen months, with release on parole directed on 29 April 2004
- Counts 2, 3 and 4: six months imprisonment from 30 October 2002 to 29 April 2003
- Execution of the substituted sentencing order stayed for fourteen days to permit the applicant to make any further application to the Court
Key Takeaways
- A sentencing court must first determine the appropriate term of imprisonment and only then consider whether that term should be served by way of periodic detention. Conflating these two steps constitutes an error of law.
- The Court of Criminal Appeal confirmed it retains jurisdiction to quash an original sentence even after the Parole Board has revoked a periodic detention order, notwithstanding the limited right of application created by s 176 of the Crimes (Administration of Sentences) Act 1999.
- Under the Crimes (Sentencing Procedure) Act 1999, there is no power to backdate a sentence that is to be served by way of periodic detention.
- Sentencing statistics showing that only 18% of offenders convicted under s 25A(1) of the Drug Misuse and Trafficking Act 1985 received non-custodial or periodic detention sentences illustrate that periodic detention for such offences represents a lenient outcome, not a standard one.
- No error of manifest excess was established where the original term of three years periodic detention fell within the range endorsed by comparable appellate decisions, even accounting for the applicant's pre-sentence custody, youth, and drug addiction.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912
- Crimes (Sentencing Procedure) Act 1999 (ss 9, 70(1))
- Drug Misuse and Trafficking Act 1985 (s 25A(1))
- Crimes (Administration of Sentences) Act 1999 (s 176)
Cases
- Neal v The Queen (1982) 149 CLR 305
- R v Bacon [2000] NSWCCA 549
- R v Bang (unreported, NSWCCA, 1 September 1992)
- R v Butcher [2001] NSWCCA 188
- R v CBK [2002] NSWCCA 457
- R v Fogg [2002] NSWCCA 395
- R v Foster [2001] NSWCCA 215
- R v Hanslow [2002] NSWCCA 161
- R v Hennock [2002] NSWCCA 229
- R v Hofer [2001] NSWCCA 544
- R v JCE [2000] NSWCCA 498; 120 A Crim R 18
- R v Kym [2002] NSWCCA 235
- R v McHugh (1985) 1 NSWLR 588
- R v Meyer [2002] NSWCCA 451
- R v Parsons & Poore [2002] NSWCCA 296
- R v Sadebath (unreported, NSWCCA, 14 May 1992)
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Smiroldo [2002] NSWCCA 120; 112 A Crim R 47
- R v Smith [2002] NSWCCA 378
- R v Sommerville (1995) 36 NSWLR 184
- R v Wegener [1999] NSWCCA 405
- R v Zamagias [2002] NSWCCA 17