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Court of Criminal Appeal 24 February 2004

R v Camplin

[2004] NSWCCA 29

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF AMPHETAMINE

Citation: R v Camplin [2004] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 24 February 2004
Judges: Levine J, Simpson J, Barr J

Background

The appellant was convicted in the District Court on two drug supply charges. The first count related to the ongoing supply of amphetamine over approximately one month in late 2002, involving multiple sales of methylamphetamine to an undercover police operative from premises at a caravan park. The second count arose from a separate supply of methylamphetamine in crystalline form ("ice") on 4 November 2002, shortly before his arrest.

At sentencing, the District Court judge imposed a fixed term of ten months on the second count and a head sentence of two years and eight months on the first count, accumulated upon the second. Four matters on a schedule were also taken into account. The effective aggregate sentence was three years and six months, with an effective non-parole period of two years and ten months.

The appellant sought leave to appeal, arguing that the accumulation of sentences produced an aggregate non-parole period that was disproportionate, that the judge failed to give adequate weight to totality, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge, when accumulating the two sentences, overlooked the effect of accumulation on the aggregate non-parole period
  • Whether the effective non-parole period exceeded what the sentencing judge intended, by bearing a disproportionate relationship to the aggregate head sentence
  • Whether the aggregate head sentence was manifestly excessive, having regard to the amounts supplied, the applicant's plea, and sentencing statistics

Decision

The Court of Criminal Appeal agreed with the appellant on the first ground. The non-parole period fixed on the first count was exactly 75 per cent of that count's head sentence in isolation, but when the accumulated ten-month fixed term was added, the effective non-parole period rose to 81 per cent of the aggregate head sentence. The Court found that the sentencing judge's reasons made no reference to the effect of accumulation on the proportionality of the parole period, and that the non-parole period bore no discernible relationship to the aggregate head sentence.

The Court acknowledged that a sentencing judge is not required to adjust the components of an accumulated sentence, and no reasons need be given for fixing a parole period at less than one quarter of a head sentence. However, it is appropriate to consider the proposed parole period as a proportion of the aggregate when accumulating sentences, and accumulation can itself constitute a special circumstance justifying an extended parole period. On the facts, the Court inferred that the judge had simply overlooked the accumulation when setting the parole period.

On the grounds of totality and manifest excessiveness, the Court declined to interfere with the head sentence. It accepted that some degree of accumulation was within the sentencing judge's discretion, noted that the drug supplied on the final occasion (ice) could be regarded as more dangerous than the earlier supplies, and observed that the ten-month sentence for that offence was lenient given the appellant's history. The Court also declined to assume that a 25 per cent discount for early guilty pleas had been applied, noting that the appropriate discount was a matter for the sentencing judge's discretion within that range.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Non-parole period on the first count quashed and substituted with a non-parole period of one year, nine and one half months, expiring 18 June 2005
  • Declaration that the applicant would be eligible for release on parole on 18 June 2005

Key Takeaways

  • A sentencing court accumulating sentences should consider the proposed parole period in proportion to the aggregate head sentence, not merely to the individual sentence being imposed.
  • Accumulation of sentences is capable of constituting a special circumstance that may justify extending the parole period of the last-accumulated sentence, though there is no obligation to make such an adjustment.
  • Where a sentencing judge's reasons contain no reference to the effect of accumulation on parole proportionality, and the resulting non-parole period bears no discernible relationship to the aggregate head sentence, the Court of Criminal Appeal may infer that the effect of accumulation was overlooked.
  • No error was established in the head sentence itself, even where the amounts supplied were small and the offender pleaded guilty at the earliest opportunity, given the nature of the drug and the offender's criminal history.
  • Sentencing statistics covering a broad range of cases carry limited weight on appeal where it cannot be determined whether comparable sentences accounted for scheduled matters, concurrent supply offences, or offending while subject to a bond.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act, s 21A (aggravating and mitigating factors)

Cases:
- R v Smiroldo (2000) 112 A Crim R 47