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9
Court of Criminal Appeal 1 November 2004

R v Heather May Attard

[2004] NSWCCA 376

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF METHYLAMPHETAMINE ACCUMULATION OF SENTENCES "SPECIAL CIRCUMSTANCES"

Citation: Heather May Attard v R [2004] NSWCCA 376
Court: NSW Court of Criminal Appeal
Date: 1 November 2004
Judge(s): Giles JA, Buddin J, Smart AJ

Background

The applicant pleaded guilty in the District Court to three counts: supplying not less than a commercial quantity of methylamphetamine, supplying methylamphetamine, and ongoing supply of methylamphetamine (supply on three or more occasions within 30 consecutive days). The first two offences arose from police searches of her premises in April and May 2001, which uncovered significant quantities of the drug along with cash and drug paraphernalia. The third arose from the interception of her mobile phone over a 30-day period in mid-2001, which revealed repeated sales to truck drivers.

The applicant was 47 at sentencing, had no prior convictions, and suffered from chronic respiratory conditions. A number of further possession and goods-in-custody offences were taken into account on a Form 1. The sentencing judge in the District Court imposed a total effective sentence of six years, with a non-parole period of four years and nine months.

The applicant sought leave to appeal against those sentences, raising grounds relating to the sentencing judge's treatment of her guilty plea, the accumulation of the sentences, and the resulting non-parole period.

  • Whether the sentencing judge gave adequate weight to the applicant's guilty plea, having regard to the strength of the Crown case
  • Whether the accumulation of sentences produced a non-parole period that exceeded the standard statutory proportion of 75% of the head sentence without adequate justification
  • Whether the accumulation of sentences itself constituted "special circumstances" warranting a departure from the standard non-parole period ratio

Decision

The Court accepted that the sentencing judge erred in his approach to the guilty plea. Although the Crown's case was strong, that does not eliminate the discount a plea of guilty attracts. However, on the guilty plea ground alone, the Court did not find that a different sentence was necessarily warranted. Giles JA specifically noted that a finding of error in failing to give adequate weight to a plea does not automatically mean that some other sentence is warranted for the purposes of the Criminal Appeal Act.

The more significant error concerned the non-parole period produced by the accumulation of sentences. The head sentence for count 3 was five years, and the non-parole period imposed was three years and nine months, which represented 75% of the head sentence taken alone. However, when that sentence was accumulated onto the earlier sentences, the combined non-parole period of four years and nine months significantly exceeded 75% of the total head sentence of six years. The Court found there was no indication the sentencing judge intended this outcome, and the Court has intervened in comparable situations on multiple prior occasions.

The Court confirmed that the accumulation of sentences can itself constitute "special circumstances" justifying a reduced non-parole period relative to the head sentence. On that basis, intervention was warranted, but only to the limited extent of reducing the non-parole period on count 3 to bring it into conformity with the normal 75% statutory proportion. The head sentences on all three counts were confirmed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentences on counts 1 and 2 confirmed
  • Head sentence on count 3 confirmed (five years imprisonment)
  • Non-parole period on count 3 quashed and replaced with a non-parole period of three years and six months, expiring 9 January 2008

Key Takeaways

  • A strong Crown case does not extinguish the discount ordinarily available for a plea of guilty, though finding error on that ground does not automatically require the imposition of a different sentence under the Criminal Appeal Act.
  • Where accumulation of sentences produces a combined non-parole period materially exceeding 75% of the total head sentence, this may constitute error even if each individual non-parole period was proportionate to its own head sentence.
  • Accumulation of sentences is a recognised basis for finding "special circumstances," which can justify setting a non-parole period below the standard 75% proportion of the head sentence.
  • The Court of Criminal Appeal's intervention was limited: it reduced the non-parole period only to the extent necessary to restore conformity with the standard statutory ratio, leaving the head sentences undisturbed.
  • Serious drug supply offences committed while on bail for earlier drug supply offences are treated as an aggravating feature at sentencing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Criminal Appeal Act (NSW), s 6(3)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Simpson (1992) 61 A Crim R 58
- R v Close (1993) 31 NSWLR 742
- R v Simpson (2001) 53 NSWLR 704
- R v Bolamatu [2002] NSWCCA 454
- R v Clissold [2002] NSWCCA 356
- R v LWP [2003] NSWCCA 215
- R v Grbin [2004] NSWCCA 220
- R v Keen [2004] NSWCCA 86
- R v Sutton [2004] NSWCCA 225
- R v Jammeh [2004] NSWCCA 327
- R v Tran [2004] NSWCCA 366