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Court of Criminal Appeal 6 December 2005

Sonter v R

[2005] NSWCCA 458

DrugsFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE MULTIPLE OFFENCES ADJUSTMENT APPROPRIATE

Citation: Sonter v R [2005] NSWCCA 458
Court: NSW Court of Criminal Appeal
Date: 6 December 2005
Judges: Grove J, Studdert J, Whealy J

Background

The applicant pleaded guilty in the District Court to two principal offences: being armed with intent to commit an indictable offence, and ongoing supply of a prohibited drug (methylamphetamine). He also asked the sentencing judge to take into account eleven further charges on a Form 1, including additional supply offences, firearms-related charges, and drug possession.

The sentencing judge imposed an overall effective term of six years one month and three days, with a non-parole period of five years one month and three days. That structure left only approximately twelve months of supervised parole at the end of a sentence that was otherwise heavily weighted toward custodial time.

The applicant sought leave to appeal against the severity of that sentence, raising three grounds of error. One of those grounds arose from what appeared to be a typographical error in the Form 1 documentation supplied to the sentencing judge, which stated an incorrect year for one of the offences.

  • Whether a typing error in the Form 1 (recording a 2004 date instead of 2003) caused the sentencing judge to misstate the period of drug supply as approximately one year rather than approximately four months, and whether that error warranted appellate intervention.
  • Whether the sentencing judge erred by treating the applicant's prior criminal record as an aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the resulting proportion of non-parole period to total sentence (approximately 83.5 percent) was manifestly inadequate in its allowance for supervised parole.

Decision

On the first ground, the Court accepted that the erroneous date in the Form 1 was the likely source of the sentencing judge's incorrect references to a supply period of approximately one year. However, the Court found no error in the judge's perception of the actual number of individual drug dealings involved, and declined to intervene on this basis alone.

On the second ground, the Court acknowledged the well-established line of authority holding that a prior criminal record should not simply be listed as a statutory aggravating factor in the manner employed by the sentencing judge. Despite that, the Court concluded that the sentence itself was not outside the range of sound discretionary exercise, given that the prior record would at minimum operate to inhibit any claim to leniency. No intervention was warranted on this ground.

On the third ground, the Court found error. After approximately five years of full-time imprisonment, a supervised parole period of only twelve months was inadequate to serve the rehabilitative purpose underlying the parole regime. The twelve-month parole period had emerged mechanically from a four-to-one division of the supply sentence, without any apparent consideration by the sentencing judge of what period of supervised release would meaningfully assist the applicant's reintegration. The Court held that an adjustment to bring the non-parole period closer to the statutory proportion was appropriate, rounding slightly in the applicant's favour.

Orders Made

  • Leave to appeal against sentence granted; appeal allowed in part.
  • The sentence for ongoing supply of a prohibited drug quashed.
  • In lieu thereof, the applicant sentenced to a non-parole period of three years five months commencing 9 December 2004 and expiring 8 May 2008, followed by a parole period of one year seven months commencing 9 May 2008.
  • Earliest date of eligibility for consideration of parole specified as 9 May 2008 (brought forward from December 2008).

Key Takeaways

  • A typographical error in Form 1 documentation supplied to a sentencing judge can produce a factual misstatement in remarks on sentence, but the Court of Criminal Appeal will not intervene unless the error demonstrably affected the sentencing outcome.
  • Describing a prior criminal record as a statutory aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999 continues to attract criticism from the Court of Criminal Appeal, consistent with R v Williams and R v Blair, though the error will not automatically vitiate a sentence that otherwise falls within the proper range.
  • Where the proportion of non-parole period to total sentence is so high (here approximately 83.5 percent) that the resulting parole period is inadequate for supervised reintegration, that disproportionality constitutes an error justifying resentencing.
  • A sentencing court is required to turn its mind to the appropriate length of supervised parole as a distinct question, not simply to derive it as a mechanical remainder after fixing the non-parole period.
  • The Court confirmed there is no special matter of principle arising from this decision beyond the adjustment required to correct the distorted parole proportion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- R v Blair [2005] NSWCCA 78
- R v Simpson (2001) 53 NSWLR 704
- R v Veen (No 2) (1988) 164 CLR 465
- R v Williams [2004] NSWCCA 76