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Court of Criminal Appeal 1 February 2005

Regina v Purdie

[2005] NSWCCA 15

Drugs
CRIMINAL LAW SENTENCING SUPPLY OF PROHIBITED DRUG OFFENDERS CREDIT FOR DISCRETE PERIOD OF PRE SENTENCE CUSTODY

Citation: Regina v Purdie [2005] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 1 February 2005
Judge(s): Grove J, James J

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of cocaine in an amount not less than the commercial quantity. The offending occurred in October 2001 and involved the applicant sourcing cocaine for co-offenders, with approximately 505.5 grams of cocaine (at 67.4 percent purity) ultimately seized. The applicant was one of three co-offenders, the other two having been found guilty by a jury after a trial from which the applicant was absent due to an overseas injury.

The applicant had served a discrete period of pre-sentence custody from June to December 2002 following an initial arrest, before being discharged at committal and released. He was then re-arrested upon returning to Australia in October 2003 and remained in custody until sentence was imposed on 19 March 2004.

Judge Urquhart sentenced the applicant to five years nine months imprisonment with a non-parole period of four years. The applicant sought leave to appeal, arguing that the non-parole period was disproportionate when compared with those of his co-offenders, and that his Honour had not correctly applied the method for crediting the discrete period of pre-sentence custody.

  • Whether the non-parole period imposed on the applicant was unjustifiably disparate compared with those imposed on his co-offenders, particularly Denholm, who received the same non-parole period despite not having pleaded guilty.
  • Whether the sentencing judge correctly calculated the credit to be given for a discrete period of pre-sentence custody when determining both the head sentence and the non-parole period.

Decision

The Court of Criminal Appeal found that the non-parole periods were disproportionate in a way that could not be justified. Denholm, a co-offender who was found guilty after trial (and who therefore received no discount for a guilty plea), was given an identical non-parole period of four years to that imposed on the applicant, who had pleaded guilty and was entitled to a meaningful discount. The Court held that this outcome was inconsistent with proper proportionality.

The Court further found that the sentencing judge appeared not to have followed the correct methodology for crediting a discrete period of pre-sentence custody. The correct approach, as established in the authorities, is to first calculate the appropriate head sentence, then divide it into a non-parole period and a parole period in the correct ratio, and only then deduct the period of pre-sentence custody from both components. Applying this method, the full six-month discrete period of pre-sentence custody should reduce both the head sentence and the non-parole period.

Applying the ratio of 60:40 between non-parole and parole periods to a putative head sentence of six years three months (after allowing a one-year discount for the guilty plea from a starting point of seven years three months), and then deducting the six-month pre-sentence custody period, the Court arrived at a non-parole period of three years three months. The head sentence of five years nine months was confirmed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of the non-parole period only.
  • The head sentence of five years nine months, commencing 24 October 2003, confirmed.
  • Non-parole period reduced from four years to three years three months, also commencing 24 October 2003.
  • First day eligible for release on parole: 23 January 2007.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a co-offender who pleads guilty must receive a non-parole period that is meaningfully shorter than that of a co-offender who was found guilty after trial, so as to properly reflect the utilitarian value of the guilty plea.
  • Where a discrete period of pre-sentence custody is to be credited, the correct approach is to calculate the head sentence and divide it into non-parole and parole components in the appropriate ratio before deducting the pre-sentence custody from both periods. Deducting the period only after calculating the ratio produces an incorrect result.
  • Sentencing disparity among co-offenders is a recognised ground for appellate intervention, particularly where the disparity cannot be explained by differences in culpability, plea, or other objective factors.
  • The Court confirmed only the non-parole period, not the head sentence, was infected by error. This illustrates that appellate courts may allow an appeal in a limited respect while affirming other aspects of the sentence below.
  • Applying the standard 60:40 (non-parole to parole) ratio as the proportionality benchmark, the Court recalculated the sentence from first principles rather than simply making an incremental adjustment to the original non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW)

Cases
- R v Patterson [2001] NSWCCA 316
- Weininger v The Queen (2003) 212 CLR 629