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Court of Criminal Appeal 31 March 2005

Regina v Kevin Leslie ALCHIN

[2005] NSWCCA 111

Drugs
SUPPLY OF PROHIBITED DRUG COMMON MISTAKE THAT STANDARD NON PAROLE REGIME APPLIED ERROR AND NEED TO RE SENTENCE OFFENDER RE

Citation: Regina v Kevin Leslie ALCHIN [2005] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 31 March 2005
Judge(s): Giles JA; Hoeben J; Johnson J

Background

The appellant pleaded guilty in the District Court to two counts of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985. The first count involved the supply of approximately 491.4 grams of amphetamine (a commercial quantity) between December 2002 and July 2003, operating from a Housing Commission unit in Camperdown. Three further offences were listed on a Form 1 (a procedural mechanism allowing courts to take additional offences into account when sentencing, without separate convictions being recorded) and attached to the first count.

At sentence, the District Court imposed a term of 6 years 6 months with a non-parole period of 4 years 6 months on the first count, and a concurrent fixed term of 2 years on the second count. The sentencing judge had regard to the standard non-parole period of 10 years set out under the Crimes (Sentencing Procedure) Act 1999, using it as a sentencing yardstick even after declining to formally fix it.

The appellant sought leave to appeal on the grounds that the judge had wrongly applied the standard non-parole period, had erred in treating the Form 1 offences, and that the sentence was manifestly excessive. The Crown conceded error on the first count and did not oppose re-sentencing.

  • Whether the standard non-parole period regime applied to an offence charged as occurring across a period that straddled the commencement date of the relevant amendments
  • Whether the sentencing judge erred in the weight given to the Form 1 offences
  • Whether the sentence on the first count was manifestly excessive and required re-sentencing

Decision

The central error concerned the transitional provisions in Schedule 2 to the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period amendments commenced on 1 February 2003, and the transitional clause provided they did not apply to offences committed before that date. The Crown's representative before the District Court incorrectly told the judge that the first count was subject to a standard non-parole period of 10 years. Neither the defence nor the judge identified the mistake. Because the first count alleged supply across a period beginning in December 2002, the Crown accepted on appeal that the offence was not one to which the standard non-parole period applied, and the judge's use of it as a yardstick was an error warranting re-sentencing.

There was also a concern about the weight attributed to the Form 1 offences, though the Court of Criminal Appeal noted this issue without developing it at length, given that re-sentencing was in any event required.

On re-sentencing, Giles JA identified an eight-year starting point, reflecting the seriousness of sustained commercial drug supply, the significant proceeds involved, and the need for both general and personal deterrence. The appellant had a prior conviction for amphetamine supply in 1996, which the Court treated as a significant factor weighing against him. The appellant's pleas of guilty, cooperation with police, and personal circumstances warranted a discount, though the Court capped this at no more than 30 per cent to avoid the sentence falling below what the offence demanded. Special circumstances were found, justifying a longer than standard parole period to assist rehabilitation.

Orders Made

  • Leave to appeal granted as to the sentence on count 1 in the indictment
  • Leave to appeal as to the sentence on count 2 in the indictment refused
  • Appeal allowed and the sentence quashed
  • Re-sentenced on count 1 (taking into account Form 1 offences) to imprisonment comprising a non-parole period of 3 years 9 months commencing 18 May 2004, expiring 17 February 2008, and a balance of term of 1 year 9 months commencing 18 February 2008, expiring 17 November 2009

Key Takeaways

  • Transitional provisions in the Crimes (Sentencing Procedure) Act 1999 meant the standard non-parole period regime did not apply to offences committed before 1 February 2003, regardless of whether the charged period extended beyond that date.
  • A common error by all parties in the District Court, including the Crown's representative, did not insulate the sentence from appellate correction; where a judge has regard to an inapplicable sentencing yardstick, this constitutes error warranting re-sentencing.
  • Where the starting point on re-sentencing involved a significant discount for pleas of guilty and cooperation, the Court of Criminal Appeal confirmed that the discount should be capped to ensure the sentence remains proportionate to the gravity of the offending.
  • Sustained commercial drug supply from residential premises, yielding substantial proceeds over eight to twelve months, was treated as serious offending attracting significant weight to general deterrence and, given a prior analogous conviction, to personal deterrence as well.
  • Finding special circumstances (a formal basis for extending the parole period beyond the statutory default) was upheld, recognising the appellant's rehabilitative needs on release.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B; Schedule 2, cl 45; Table to Division 1A, item 18

Cases:
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Clarke, CCA, 15 March 1990 (unreported)
- R v Ohar [2004] NSWCCA 83
- R v Way (2004) 60 NSWLR 168