Citation: Regina v Vu [2003] NSWCCA 316
Court: Court of Criminal Appeal, New South Wales
Date: 31 October 2003
Judge(s): Spigelman CJ, O'Keefe J, Greg James J
Background
The appellant pleaded guilty in the District Court to two offences of supplying heroin, both committed within five days of each other in January 2002. The first involved a small quantity (0.37 grams) sold to undercover police officers at Lewisham; the second, which arose from an agreement made during that same encounter, involved a significantly larger quantity (84 grams) sold to the same officers at Marrickville for $23,700.
At sentencing, the District Court imposed a fixed term of six months for the first offence, followed by a consecutive (cumulative) four-year term with a three-year non-parole period for the second. The total effective sentence was four and a half years, with the appellant ineligible for parole for three and a half years.
A co-offender, Tran, who supplied the 84 grams to the appellant immediately before the second transaction, was later sentenced by a different judge to three years and six months with a non-parole period of two years.
Legal Issues
- Whether the sentencing judge gave adequate weight to the early plea of guilty
- Whether the two sentences should have been imposed concurrently rather than cumulatively, given the connection between the offences
- Whether the cumulative structure of the sentences created an unjustifiable disparity with the co-offender's sentence
- Whether special circumstances existed that warranted a reduction in the non-parole period relative to the head sentence
- Whether the overall sentence was manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal, though it upheld both head sentences individually. O'Keefe J delivered the leading judgment, with Spigelman CJ and Greg James J agreeing.
On the early plea of guilty, the Court found no error. The sentencing judge had expressly acknowledged the early plea and the contrition it evidenced, applying a discount of approximately 20 per cent. That figure falls within the accepted range established in R v Thomson; R v Houlton, and the Court declined to interfere with the exercise of discretion on that ground.
On the question of concurrence versus accumulation, the Court held that the sentencing judge had erred by failing to consider the totality of the criminality across both offences after deciding to impose cumulative sentences. The two offences were closely linked: they involved the same supplier and the same recipients, and the first sale was the occasion on which the second (larger) transaction was arranged. While the judge was entitled to accumulate the sentences as separate criminal acts, the totality principle required that the overall sentence reflect the connected nature of the conduct. That step was not taken.
On parity and special circumstances, the Court found that the combination of cumulative sentences and the absence of a special circumstances finding resulted in an effective non-parole period (three and a half years) that sat markedly higher than the co-offender's non-parole period of two years. The appellant's age, ill health, lack of prior convictions, and rehabilitation prospects were accepted as constituting special circumstances. The Court restructured the sentences to make both terms concurrent from 26 June 2002, and reduced the non-parole period for the second offence to two and a half years.
Orders Made
- Leave to appeal granted
- Appeal against severity of sentence allowed
- Sentence imposed below quashed and the following substituted:
- For the offence of 3 January 2002: fixed term of imprisonment commencing 26 June 2002 and terminating 25 December 2002
- For the offence of 8 January 2002: imprisonment for four years commencing 26 June 2002 and terminating 25 June 2006, with a non-parole period of two and a half years expiring 25 December 2004
- Both sentences run concurrently from 26 June 2002
Key Takeaways
- Where a sentencing court decides to impose cumulative rather than concurrent sentences for related offences, it must then turn its mind to the totality of the criminality involved. Failing to do so is a specific identifiable error, even if each individual head sentence falls within an acceptable range.
- A connection between offences, such as both arising from the same criminal enterprise, involving the same parties, and one providing the occasion for the other, is a relevant factor when considering whether concurrence is more appropriate than accumulation.
- Parity with a co-offender's sentence remains a live ground of appeal even where the co-offender was sentenced separately by a different judge. A marked disparity that would give rise to a justifiable sense of grievance may require correction on appeal.
- Special circumstances (within the meaning of the Crimes (Sentencing Procedure) Act 1999) can be established by a combination of factors including the offender's age, health, absence of prior convictions, and rehabilitation prospects, and their presence justifies a longer ratio of parole supervision to non-parole period.
- Judicial Commission statistics confirming that a head sentence falls within the established range do not, by themselves, insulate a sentence from appellate intervention where error is found in the structure of the overall sentence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Listening Devices Act 1984 (NSW)
Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- House v The King (1936) 55 CLR 499
- Lowe v Regina (1984) 154 CLR 606
- Postiglione v The Queen (1996-1997) 189 CLR 295
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383