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Court of Criminal Appeal 19 September 2003

REGINA v. D'ALENCON

[2003] NSWCCA 269

Drugs
CRIMINAL LAW SENTENCE APPEAL TOTALITY OF CRIMINALITY AND SENTENCE

Citation: [2003] NSWCCA 269
Court: Court of Criminal Appeal, New South Wales
Date: 19 September 2003
Judge(s): Hidden J, Greg James J, Smart AJ

Background

The applicant pleaded guilty in the District Court to three drug offences involving methylamphetamine: an ongoing supply offence committed between June and July 2001, a single supply offence on 26 July 2001, and an offer to supply a commercial quantity on the same date. Two charges were committed for sentence from the Local Court; the third was presented by indictment on the day of the sentencing hearing.

Freeman DCJ sentenced the applicant to three years imprisonment on count one and two years on count two, both running concurrently from 26 July 2001, with no non-parole period imposed for either. On count three, his Honour imposed five years imprisonment commencing 26 July 2003, with a non-parole period of three years, producing a total effective head sentence of seven and a half years and a minimum period in custody of five years.

The applicant, appearing in person, sought leave to appeal against those sentences. The central complaint was that the sentencing structure failed to give adequate weight to the fact that all three offences formed part of a single, continuing series of transactions.

  • Whether the sentencing judge gave sufficient weight to the principle that multiple offences forming part of a continuing series should be considered in the context of overall totality
  • Whether the commencement date of the sentence on count three was appropriate given the relationship between the three offences
  • Whether the decision to impose no non-parole period on counts one and two required recorded reasons under s 45 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the overall structure of the sentences properly reflected both the totality of the criminality and the totality of sentence

Decision

The Court of Criminal Appeal accepted that Freeman DCJ had engaged carefully with the factual material and had applied a 25 per cent utilitarian discount for the early guilty pleas. However, the Court found that when constructing the cumulative structure of the sentences, the sentencing judge had not given sufficient regard to the fact that the third offence was also part of the same series of transactions as the first two.

Greg James J reasoned that the appropriate correction was confined to the commencement date of the sentence on count three, rather than any disturbance of the individual sentences themselves. Bringing count three's commencement date forward by one year, from 26 July 2003 to 26 July 2002, produced a one-year reduction in the overall minimum period the applicant would serve. The non-parole period was also moved to commence on the same earlier date.

The Court confirmed that no non-parole period should be imposed on counts one and two. This meant the applicant's minimum time in custody was governed by the non-parole period on count three running in conjunction with the sentences on the other counts. Greg James J expressly noted the applicant's age as a relevant consideration in calibrating the non-parole period.

No issue was ultimately determined on the apparent irregularity in the prior traffic penalty noted by the Crown, as the sentencing judge had already treated that record as not particularly relevant. The Court did not disagree with that characterisation in the circumstances.

Orders Made

  • Sentences on counts one and two confirmed
  • Sentence and non-parole period on count three confirmed but both to commence from 26 July 2002 (brought forward by one year)
  • Applicant eligible for release on parole on 25 July 2005

Key Takeaways

  • Where multiple offences are part of a continuing series of transactions, the sentencing court is required to give sufficient regard to that connection when constructing cumulative and concurrent sentence structures, not only when assessing individual sentences.
  • The Court of Criminal Appeal confirmed that the appropriate remedy for a totality error of this kind may be limited to adjusting the commencement date of a sentence rather than disturbing the individual penalties imposed.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999, a court declining to set a non-parole period should record its reasons; the sentencing judge's omission here was noted, though the Court inferred a structural rationale from the overall sentencing approach.
  • In assessing the appropriate non-parole period as part of a complex sentencing structure, the applicant's age and the practical effect of the total period in custody were treated as relevant considerations.
  • Applying the Pearce principles on cumulation and concurrence, the Court of Criminal Appeal reduced the effective minimum custodial period by one year without altering any of the individual head sentences.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 51A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610