Citation: REGINA v Wayne Raymond MOULE [2003] NSWCCA 29
Court: Court of Criminal Appeal, New South Wales
Date: 28 February 2003
Judge(s): Bell J
Background
The appellant had pleaded guilty to six offences committed on 11 February 2001, including break and enter and steal, break and enter with intent, being carried in a conveyance without the owner's consent, malicious damage, and possession of a prescribed restricted substance. He was sentenced in the Drug Court by Senior Judge Murrell, who suspended execution of the sentences for the duration of a Drug Court program under the Drug Court Act 1998.
The appellant's Drug Court program was terminated in May 2002 after the court found no useful purpose would be served by his continued participation. The matter was then referred to Judge Milson in the Drug Court for resentencing under section 12 of the Drug Court Act, which requires the court to reconsider the initial sentence upon program termination. Judge Milson also sentenced the appellant for two further offences committed during the program: theft of children's clothing and possession of cannabis.
The appellant, unrepresented and absent from the hearing, had filed written submissions challenging the sentences imposed by Judge Milson. The Crown appeared and opposed the appeal. Bell J determined the appeal on the written submissions, having made further efforts through police to locate the appellant without success.
Legal Issues
- Whether the sentences imposed by Judge Milson were disproportionately harsh compared to those imposed on the appellant's co-offender and partner, who received a lesser sentence, giving rise to an unjustifiable sense of grievance.
- Whether Judge Milson erred by failing to find special circumstances justifying a longer parole period.
Decision
On the disparity ground, Bell J examined the sentences imposed on the appellant's partner and co-offender, Ms Keating, who had also participated in the Drug Court program. Her program had been more successful, resulting in a reduction from her initial suspended sentences. The appellant's sentences, by contrast, reflected his more extensive criminal history and, critically, the fact that the original offences were committed while he was on parole.
Bell J applied the principle from Lowe v The Queen that co-offenders need not receive identical sentences where their personal circumstances differ. The circumstance of offending while on parole is a significant aggravating factor, as confirmed in R v Readman. Taking those factors together, Bell J was not persuaded that the appellant had a justifiable sense of grievance sufficient to warrant the Court's intervention.
On the special circumstances ground, Bell J rejected the submission as without merit. The sentences imposed by Judge Milson were described as exhibiting considerable leniency. Bell J found that to have imposed a non-parole period of less than nine months for the break and enter offences would itself have been manifestly inadequate, leaving no basis for extending the parole period further.
Orders Made
- Appeal dismissed.
Key Takeaways
- Disparity in sentences between co-offenders does not automatically give rise to error: where one offender has a more extensive criminal record and committed the offences while on parole, those factors justify a heavier sentence than that received by the co-offender.
- Offending while on parole is a significant aggravating circumstance, as confirmed by the Court of Criminal Appeal's application of R v Readman.
- Under section 12 of the Drug Court Act 1998, when a Drug Court program is terminated the court must reconsider the initial sentence, taking into account the nature of participation, sanctions imposed, and time spent in custody during the program.
- A claim of special circumstances (which in NSW sentencing law allows the court to adjust the ratio of non-parole to total sentence) will not succeed where the sentences already reflect considerable leniency and a shorter non-parole period would produce a manifestly inadequate result.
- Proceedings may be determined in an appellant's absence where the court is satisfied that reasonable efforts have been made to notify the appellant of the hearing date and there is material on which a decision can be reached, such as previously filed written submissions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113, 117, 154A, 195
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Drug Court Act 1998 (NSW), ss 7, 8A, 10, 12
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Alexander (2000) 118 A Crim R 350
- R v Readman (1990) 47 A Crim R 181