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Court of Criminal Appeal 1 October 2003

R v REICHER

[2003] NSWCCA 300

DrugsFirearms & weapons

Citation: R v Reicher [2003] NSWCCA 300
Court: New South Wales Court of Criminal Appeal
Date: 1 October 2003
Judge(s): Hulme J; Greg James J

Background

The appellant pleaded guilty in the Newcastle Local Court to four offences: two counts of supplying methylamphetamine, and two counts of unlawfully selling firearms (including a stolen semi-automatic pistol). On 5 December 2002, Naughton DCJ sentenced the appellant in the District Court to a total effective term of five years, incorporating sentences structured so that only the fourth and final count carried an explicit non-parole period of eighteen months.

The appellant came to police attention through a controlled drug investigation involving an undercover operative. His role, as he described it, was that of a "middleman," earning a percentage from transactions. Subjective factors before the sentencing judge included a difficult upbringing, a severe alcohol problem, chronic back injury, a prior criminal history dating to 1966, and the breakdown of his marriage and relationship with his children as a result of the offending.

The appellant sought leave to appeal against the sentences imposed, initially on six grounds, though two were abandoned before the hearing.

  • Whether the sentencing judge erred by failing to account for the effect of accumulation of sentences when setting the non-parole period.
  • Whether the sentencing judge erred in assessing the appellant's role in the offences.
  • Whether the sentencing judge gave proper weight to the appellant's subjective circumstances.
  • Whether the sentences were imposed in conformity with the High Court's decision in Pearce v The Queen (1998) 194 CLR 610, which addresses the setting of individual sentences where multiple offences are involved, particularly where elements may overlap.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeals in respect of counts 1, 2 and 3. It found no error warranting intervention in those sentences.

The appeal in respect of count 4 was allowed. The Court found that special circumstances existed, justifying a departure from the statutory ratio between the total sentence and the non-parole period. The relevant special circumstances were: the accumulation of sentences across all four counts, the absence of non-parole periods on counts 1, 2 and 3, the appellant's age, and his need for rehabilitation arising from his alcoholism.

On the Pearce principle, Greg James J noted that the High Court's observations about sentencing for individual offences in that case were directed specifically at the problem of inappropriate additional penalties arising where the elements of offences overlapped. The Court took the view that this context was important, and that the appropriate practical and theoretical course was that proposed by Hulme J.

The Court also observed that, although Naughton DCJ did not expressly state his reasons, it was apparent from the structure of the sentences overall that the absence of non-parole periods on counts 1, 2 and 3 had been a deliberate feature of the sentencing design.

Orders Made

  • Leave to appeal granted.
  • Appeals against sentences on counts 1, 2 and 3 dismissed.
  • Appeal against sentence on count 4 allowed; that sentence quashed.
  • Count 4 re-sentenced to two years' imprisonment commencing 5 December 2005, including a non-parole period of nine months commencing 5 December 2005 and expiring 4 September 2006.
  • Appellant to be released to supervised parole at the expiration of the non-parole period, subject to conditions under regulation 217 of the Crimes (Administration of Sentences) Regulations.
  • Earliest eligible parole release date: 5 September 2006.
  • Court recommended the parole authorities impose appropriate alcohol treatment conditions on release.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the accumulation of sentences across multiple counts, combined with the absence of non-parole periods on earlier counts and a demonstrated need for rehabilitation, can together constitute "special circumstances" justifying a reduction in the non-parole period on a later count.
  • Where a sentencing judge imposes a series of cumulative fixed terms without non-parole periods, followed by a final sentence with a non-parole period, an appellate court may infer a deliberate structural rationale even where no express reasons are given.
  • Under the Pearce v The Queen framework, the High Court's guidance on fixing individual sentences within a multiple-offence sentencing exercise is to be understood as directed primarily at preventing inappropriate double-penalisation where offence elements overlap, rather than as a freestanding general rule.
  • A severe and ongoing alcohol problem, combined with age and the structure of accumulated sentences, may be relevant to the assessment of special circumstances when fixing non-parole periods.
  • In allowing only the appeal on count 4 while dismissing the rest, the Court demonstrated a restrained appellate approach, intervening only where a specific error in the non-parole period calculation was established.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Firearms Act 1966 (NSW), s 51(2)
- Crimes (Administration of Sentences) Regulations (NSW), reg 217

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