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Court of Criminal Appeal 8 December 2003

R v SILK

[2003] NSWCCA 370

DrugsFirearms & weapons

Citation: R v SILK [2003] NSWCCA 370
Court: NSW Court of Criminal Appeal
Date: 8 December 2003
Judge(s): Hulme J, Sully J, Miles AJ

Background

Following a police search of a 20-hectare rural property in April 2002, the appellant was charged with multiple offences: supplying and cultivating cannabis, possessing two unlicensed rifles, possessing two unlicensed pistols, and possessing two prohibited Taser stun guns. The cannabis operation involved a sophisticated basement grow system, with approximately 64 plants at various stages and roughly 7.5 kilograms of harvested material drying on the premises.

The appellant was sentenced in the District Court by Cooper DCJ in March 2003. The sentences were structured in cascading groups, producing an effective total of four years imprisonment with a non-parole period of one year. Cooper DCJ also purported to deal with several "back up" charges under section 36 of the Crimes (Sentencing Procedure) Act, imposing fixed terms of six months on certain firearm storage offences.

The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentences were excessive and that the sentencing judge had failed to give proper effect to his own finding of special circumstances, which would ordinarily justify a longer parole period relative to the total sentence.

  • Whether the District Court had power under section 36 of the Crimes (Sentencing Procedure) Act to sentence the appellant on the "back up" firearm storage charges, and if not, what remedy was appropriate.
  • Whether the sentencing judge gave proper effect to his finding of "special circumstances" (a statutory concept allowing the court to depart from the standard ratio of non-parole to total sentence) when structuring the sentence for the pistol and stun gun offences.
  • Whether the effective custodial period of four years required adjustment to reflect the sentencing judge's stated intentions and favourable findings about the appellant.

Decision

On the back-up charges, the Court found that Cooper DCJ lacked the power to deal with them under section 36 as then framed. However, the Court declined to remit those matters to a magistrate, noting that the sentences imposed were wholly concurrent with others already served and had expired. Any new penalty would almost certainly be custodial and concurrent, making remittal a futile exercise. The Court refused leave to appeal on those charges.

On the main charges (cannabis and firearms), the Court dismissed the appeal in respect of the cannabis supply and cultivation offences and the two rifle possession offences, finding no appellable error in those sentences.

The critical issue was the pistol and stun gun offences. Cooper DCJ had expressly found special circumstances, which would justify a higher ratio of parole time to non-parole time. However, the sentence he ultimately imposed fixed the balance of term (the parole period) at only twelve months, inconsistent with that stated intention. The Court concluded this was most likely a mistake rather than a deliberate choice.

To give proper effect to the sentencing judge's own findings, the Court re-sentenced the appellant on the pistol and stun gun charges. The revised sentence reduced the effective period spent in custody from four years to three years, with a restructured non-parole period. The Court was satisfied that three years more accurately reflected both the judge's intentions and the appropriate measure of the appellant's criminality given the favourable findings made at first instance.

Orders Made

  • Leave to appeal granted in respect of the cannabis supply, cannabis cultivation, rifle possession, pistol possession, and stun gun offences.
  • Appeal dismissed on the cannabis supply, cannabis cultivation, and rifle possession charges.
  • Appeal allowed on the two pistol possession and one stun gun possession charges; sentences imposed by Cooper DCJ on those charges quashed.
  • On each of the three quashed charges, the appellant re-sentenced to imprisonment for three years commencing 3 April 2004 and expiring 2 April 2007, including a non-parole period of one year commencing 3 April 2004 and expiring 2 April 2005.
  • Leave to appeal refused on the back-up firearm storage charges.

Key Takeaways

  • Where a sentencing judge expressly finds special circumstances justifying a longer parole period, the sentence structure must actually reflect that finding; an inconsistency between the stated intention and the sentence imposed may constitute an appealable error.
  • The Court of Criminal Appeal confirmed that a likely inadvertent error in structuring a sentence provides a proper basis for intervention and resentencing, even where the original sentence was not otherwise manifestly excessive.
  • Refusing leave to appeal on the back-up charges, the Court applied a practical no-utility principle: where sentences have already expired and any fresh penalty would be concurrent with existing terms, remittal serves no purpose.
  • A criminal history including prior drug cultivation, firearm possession, and prohibited weapon offences was treated as a significant aggravating feature, reflecting the court's view that the appellant had a sustained pattern of disregarding legal norms.
  • Under the relevant statutory framework, section 36 of the Crimes (Sentencing Procedure) Act did not, as then framed, confer power on the District Court to sentence an offender on charges designated as back-up charges in the circumstances presented.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 36
- Criminal Procedure Act 1986 (NSW), s 36 (referenced in relation to back-up charge procedure)

Cases:
No cases were cited in the portions of the judgment provided.