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Court of Criminal Appeal 28 September 2005

R v Smith

[2005] NSWCCA 339

Assault & violenceDrugsTheft & property
CRIMINAL LAW CROSS APPEAL BY CROWN S 7(1A), CRIMINAL APPEAL ACT CHARGES OF SUPPLY PROHIBITED DRUG ENTER DWELLING WITH INTENT

Citation: R v Smith [2005] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 28 September 2005
Judges: Hulme J, Hidden J, Bell J

Background

The applicant was sentenced in the District Court on 21 October 2004 for three offences arising from events on the night of 15 November 2002: supplying a small quantity of methylamphetamine (0.05 grams), entering a dwelling house with intent to commit larceny, and maliciously inflicting grievous bodily harm on a 14-year-old girl. The offences occurred on the same night, but in distinct circumstances: the drug supply took place at the front door earlier in the evening, and the break-in and assault on the teenage occupant followed hours later.

Judge Latham (as her Honour then was) imposed a fixed term of 2 years for the drug supply charge, and concurrent sentences of 3 years (with a 1-year non-parole period) and 4.5 years (with a 2-year non-parole period) for the other two charges, all accumulated on the drug sentence. The effective total was 6.5 years imprisonment with a non-parole period of 4 years.

Both the applicant and the Crown appealed. The applicant contended the drug sentence was manifestly excessive. The Crown challenged the overall structure and quantum of the sentences as failing to adequately reflect the totality of the offending.

  • Whether the 2-year fixed term for supplying a small quantity of methylamphetamine was manifestly excessive
  • Whether running the sentences for the entering dwelling and GBH charges concurrently with each other (rather than with accumulation) was appropriate
  • Whether the accumulation of those concurrent sentences on the drug sentence was appropriate
  • Whether the overall sentence adequately reflected the total criminality of the three offences
  • Whether an error in an individual sentence can be excused where the overall sentence is considered appropriate to the total criminality involved

Decision

The Court found that the 2-year fixed term for the drug supply offence was manifestly excessive. The quantity involved was a "small quantity" under the Drug Misuse and Trafficking Act 1985, and the Crown had elected to proceed on indictment rather than summarily. Had the matter been dealt with summarily, the maximum penalty would have been 2 years. The Court concluded a 3-month fixed term was the appropriate sentence for that discrete offence.

On the structural question, the Court found that running the sentences for the GBH and the entering dwelling offences concurrently with each other was itself an error, given the distinct nature of those offences. However, the more significant issue concerned whether an erroneously lenient or excessive individual sentence could be allowed to stand simply because the overall sentence appeared appropriate in light of the total criminality.

The judges differed slightly in their approach to the principle from R v Bottin, which supports absorbing individual errors into an otherwise appropriate overall term. Hulme J expressed reservations about that approach in this context. Hidden J, while accepting the Bottin principle as generally sound, held it should not apply here: because the three offences were of entirely different natures and not part of a continuing criminal enterprise, a manifestly excessive individual sentence could not be left uncorrected on the basis that it was neutralised by the broader picture. Bell J agreed with the orders but declined to express a view on the correctness of the Bottin approach.

The Court quashed all sentences and resentenced the applicant. The GBH offence attracted the most significant term, reflecting its seriousness. The sentences were structured with meaningful accumulation to ensure the total term properly reflected the applicant's overall criminality.

Orders Made

  • Leave to appeal granted to the applicant
  • Applicant's appeal allowed
  • Crown appeal allowed
  • All sentences imposed by Judge Latham on 21 October 2004 quashed
  • For supplying a prohibited drug (15 November 2002): fixed term of 3 months commencing 27 August 2003
  • For maliciously inflicting grievous bodily harm (15 November 2002): non-parole period of 3 years commencing 27 November 2003, balance of term of 1.5 years commencing 27 November 2006
  • For entering a dwelling house with intent to commit larceny (15 November 2002): non-parole period of 1 year commencing 27 May 2006, balance of term of 2 years commencing 27 May 2008

Key Takeaways

  • A manifestly excessive sentence on one charge cannot necessarily be left uncorrected simply because the overall sentence across multiple offences appears appropriate to the total criminality involved, particularly where the offences are of different natures and unrelated in character.
  • Where offences are sufficiently distinct, the Court of Criminal Appeal will examine each individual sentence on its own merits rather than treating the overall term as determinative of whether intervention is required.
  • The principle from R v Bottin (that a court may decline to intervene in individual sentences where the overall sentence is appropriate) received qualified treatment in this decision: Hidden J considered it generally sound but inapplicable where offences are unrelated; Bell J declined to endorse or reject it; Hulme J expressed reservations about its breadth.
  • Electing to proceed on indictment for a "small quantity" drug offence does not automatically justify a sentence approaching the higher indictable maximum; the sentencing court must still reflect the true objective seriousness of the offending, including what would have applied had the matter proceeded summarily.
  • Concurrent sentences for multiple serious offences of different types may themselves represent a sentencing error requiring correction, even where the nominal headline figure appears adequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 114(1)(d), 35(1)(b)
- Criminal Procedure Act 1986 (NSW), s 260(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7(1A)

Cases:
- R v Bottin [2005] NSWCCA 254
- R v Georgiou [2005] NSWCCA 237
- R v Crombie [1999] NSWCCA 297
- R v Carr (2002) 135 A Crim R 171
- R v Price [2002] NSWCCA
- R v Scott [2003] NSWCCA 286
- R v Thomson & Holton [2000] 49 NSWLR 383
- R v Royal [2003] NSWCCA 275
- R v Shankley [2002] NSWCCA 253
- R v Wickham [2004] NSWCCA 193