Citation: Regina v Novakovic [2004] NSWCCA 437
Court: NSW Court of Criminal Appeal
Date: 6 December 2004
Judge(s): Sully J (primary judgment), Hidden J, Howie J (both agreeing)
Background
The appellant was one of four co-offenders sentenced in the District Court at Sydney in mid-2004 in connection with drug manufacturing offences involving methylamphetamine and its precursor pseudoephedrine. After a trial commenced before a jury, the appellant pleaded guilty mid-proceedings to two counts: knowingly taking part in the manufacture of a commercial quantity of methylamphetamine (Count 2), and possessing pseudoephedrine as a precursor intended for the manufacture of methylamphetamine (Count 6). The Crown accepted those pleas in full satisfaction of the indictment.
At sentencing, the District Court also took into account four additional scheduled matters, including supply of cocaine and possession of prohibited weapons. The appellant received three years' imprisonment on Count 2 (with no non-parole period set as part of the overall structure) and four years' imprisonment on Count 6 (with a three-year non-parole period). Both sentences dated from 28 October 2003.
The appellant sought leave to appeal against those sentences on grounds including sentencing disparity with co-offenders, manifest excess, and the sentencing judge's failure to find "special circumstances" that would justify a departure from the standard non-parole ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legal Issues
- Whether the sentence on Count 2 was affected by an unjustifiable disparity with the sentence imposed on a co-offender (Hansel).
- Whether the sentence on Count 6 was manifestly excessive.
- Whether the sentence on Count 6 was affected by an unjustifiable disparity with the sentence imposed on a co-offender (Porreca).
- Whether the sentencing judge erred by failing to find "special circumstances" and adjust the non-parole period accordingly.
Decision
The Court allowed the appeal on two of the four grounds: manifest excess in relation to Count 6, and the failure to address "special circumstances."
On the disparity grounds, the Court's analysis distinguished carefully between the positions of the various co-offenders. The disparity with Hansel's sentence on Count 2 was addressed in the context of an earlier Crown appeal (dismissed the same day), where the Court found Hansel's sentences were erroneous but declined to intervene due to exceptionally powerful subjective considerations personal to Hansel. That highly unusual situation meant any apparent disparity with the appellant's sentence on Count 2 did not give rise to a legitimate grievance.
On Count 6, the Court found the four-year head sentence was manifestly excessive when assessed against the nature of the offence, the applicable statutory maximum of ten years, and the sentences imposed on the co-offender Porreca for a relevantly comparable offence. A three-year head sentence was considered more appropriate.
On special circumstances, the Court found the sentencing judge had failed to give any explanation for not reducing the non-parole period, despite a number of features in the appellant's case (including prior good character, no prior imprisonment, contrition, age in his fifties, and good rehabilitation prospects) that were capable of constituting special circumstances. The Court held there was proper scope for a modest reduction in the non-parole period on this basis, and adjusted the sentence on Count 6 accordingly. A complementary non-parole period was also appended to the Count 2 sentence to give the overall structure coherence.
Orders Made
- Leave to appeal against sentence granted.
- The sentence on Count 6 was quashed and replaced with imprisonment for 3 years commencing 28 October 2003 and expiring 27 October 2006, with a non-parole period of 2 years commencing 28 October 2003 and expiring 27 October 2005, upon which date the appellant was ordered to be released to parole.
- The sentence on Count 2 was varied by appending a non-parole period of 2 years commencing 28 October 2003 and expiring 27 October 2005, upon which date the appellant was ordered to be released to parole.
- All other sentences passed in the District Court were confirmed.
Key Takeaways
- A sentencing judge who declines to find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999 (NSW) must provide at least a brief explanation, whether the conclusion is that no such circumstances exist in law or that they exist in principle but are not made out on the facts.
- Sentencing disparity between co-offenders does not automatically give rise to a legitimate grievance. Where a co-offender's more lenient sentence was itself erroneous and was preserved only through the exercise of a residual discretion based on exceptional personal circumstances, the disparity may not be one the law will correct.
- Manifest excess on a count carrying a ten-year statutory maximum was established where the head sentence of four years was disproportionate to the nature of the offence and the comparable treatment of a co-offender in a relevantly similar position.
- Personal circumstances including prior good character, no prior custodial history, contrition, older age, and genuine rehabilitation prospects were found to constitute sufficient basis for a finding of special circumstances, warranting a modest reduction below the standard non-parole ratio.
- In adjusting sentences on appeal, the Court of Criminal Appeal may both re-sentence on one count and vary the structure of another count to achieve coherence across the overall sentencing regime.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 32 (scheduling of additional offences) and the special circumstances provisions governing the non-parole period ratio.
Cases:
- Reg v Ismunander & Siregar [2002] NSWCCA 477