Citation: Douar v Regina [2005] NSWCCA 455
Court: NSW Court of Criminal Appeal
Date: 22 December 2005
Judge(s): McClellan CJ at CL, Adams J, Johnson J
Background
The applicant pleaded guilty in the Sydney District Court to supplying a prohibited drug (methylamphetamine), an offence carrying a maximum penalty of 15 years imprisonment. The charge arose from a July 2001 traffic stop in which police found over 8 grams of methylamphetamine and 30 grams of cannabis concealed in a hidden dashboard compartment. Five further drug possession offences were taken into account on a Form 1. The applicant had also provided police with a false driver's licence and a false name at the time of arrest.
In April 2003, Solomon DCJ sentenced the applicant to three years imprisonment with a non-parole period of two years and three months, to be served by way of periodic detention. The applicant sought leave to appeal against that sentence, though the notice of intention to apply for leave to appeal was filed significantly out of time, requiring an extension.
The appeal raised two distinct sets of issues: whether the sentencing judge had erred in the sentencing methodology, and how the Court of Criminal Appeal should apply the statutory test under s 6(3) of the Criminal Appeal Act 1912 when determining whether to intervene.
Legal Issues
- Whether the sentencing judge erred by failing to fix the appropriate full term of the sentence before considering whether to impose an alternative to full-time custody (periodic detention)
- Whether the sentence imposed was within the appropriate range for the offence and the offender
- Whether the application for an extension of time to seek leave to appeal should be granted
- Whether the Court of Criminal Appeal should apply the s 6(3) test by reference to circumstances at the time of the original sentencing or at the time of the appeal hearing
- What orders were appropriate once error was established, including whether to resentence or remit to the District Court
Decision
Johnson J (with whom McClellan CJ at CL and Adams J agreed) found that the sentencing judge had made a legal error in the sentencing methodology. The established principle requires a sentencing court first to determine the appropriate full custodial term, and only then to consider whether that sentence should be served in an alternative way such as periodic detention. Failing to follow that sequence constitutes an identifiable error.
On the s 6(3) test under the Criminal Appeal Act 1912, the Court examined the question of whether it should assess that test by reference to the circumstances at the time of the District Court sentencing or at the time of the appeal hearing. The Court resolved this question in a manner that informed its ultimate exercise of discretion.
The Court also found that a full-time custodial sentence was required for an offence of this nature, absent exceptional circumstances, and that the full-time duration involved in the original sentence was outside the appropriate range for this offence and this offender. Error having been established, and given that more than two and a half years had passed since the original sentencing, the Court concluded that remittal to the District Court was preferable to the Court itself resentencing. Significant new factors existed, including the applicant's assistance to authorities, about which the Court had only limited information, making a fresh sentencing hearing the appropriate course.
Orders Made
- Time extended to 22 June 2005 to file the Notice of Intention to Apply for Leave to Appeal
- Leave to appeal granted; appeal allowed; sentence imposed by Solomon DCJ on 24 April 2003 quashed
- Matter remitted to the District Court for resentencing in accordance with the judgment, pursuant to s 12(2) of the Criminal Appeal Act 1912
- The question of the applicant's bail pending his appearance in the District Court may be determined by a single judge
Key Takeaways
- A sentencing court must determine the appropriate full term of imprisonment before turning to whether the sentence should be served by way of periodic detention or another alternative to full-time custody. Reversing that sequence constitutes an error of principle.
- For an offence of supplying prohibited drugs, a full-time custodial sentence is required in the absence of exceptional circumstances, consistent with the Court of Criminal Appeal's earlier decision in R v Ha [2004] NSWCCA 386.
- The Court examined and resolved the proper temporal frame of reference for applying the s 6(3) test under the Criminal Appeal Act 1912, clarifying whether it looks to circumstances at the time of original sentencing or at the time of the appeal.
- Where significant time has passed since the original sentence and new factual material has emerged, remitting the matter to the District Court under s 12(2) of the Criminal Appeal Act 1912 may be preferable to the Court of Criminal Appeal conducting its own resentencing.
- An out-of-time application for leave to appeal against sentence is not automatically fatal: the Court granted the extension where the underlying merits warranted examination.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2)
- Periodic Detention of Prisoners Act 1981 (NSW)
- Interpretation Act 1987 (NSW)
Key Cases
- R v Ha [2004] NSWCCA 386
- R v Wegener [1999] NSWCCA 405
- R v Young [1999] NSWCCA 275
- R v Beattie [2000] NSWCCA 201
- R v Zamagias [2002] NSWCCA 17
- AB v The Queen (1999) 198 CLR 111
- House v The King (1936) 55 CLR 499
- Ryan v The Queen (2001) 206 CLR 267
- Dinsdale v The Queen (2000) 202 CLR 321
- R v McLean (2001) 121 A Crim R 484
- R v Cooney [2004] NSWCCA 255
- R v Bloomfield (1998) 44 NSWLR 734
- R v Mai (1992) 26 NSWLR 371