Citation: Regina v Farah [2005] NSWCCA 67
Court: New South Wales Court of Criminal Appeal
Date: 1 March 2005
Judge(s): Grove J, James J, Barr J
Background
The applicant was convicted of three offences involving the supply of heroin and methylamphetamine to an undercover police officer during a controlled operation between September and November 2000. Over that period, he supplied 256 tablets of methylamphetamine and approximately 185 grams of high-purity heroin, receiving around $34,450. He pleaded guilty to two supply offences and one offence of ongoing supply (which also took into account a conspiracy charge), while a third charge of supplying a large commercial quantity of methylamphetamine was determined at trial by Judge Moore DCJ.
Judge Sides DCJ sentenced the applicant for the three offences to which guilty pleas had been entered, imposing terms that commenced on 23 May 2005, a date calculated to follow the expiry of the non-parole period in the sentence previously imposed by Judge Moore. The applicant sought leave to appeal those sentences on multiple grounds.
Separately, prior to sentencing, the NSW Crime Commission had obtained a substantial pecuniary penalty order against the applicant under the Criminal Assets Recovery Act, which Adams J had characterised as punitive in nature. The applicant argued that Sides DCJ failed to give adequate weight to this order in determining the additional punishment to be imposed.
Legal Issues
- Whether the sentences imposed by Sides DCJ were manifestly excessive
- Whether Sides DCJ erred in failing to make adequate allowance for the applicant's medical condition (a leg injury)
- Whether Sides DCJ erred in failing to make a finding that the applicant had favourable prospects of rehabilitation
- Whether the principle of totality was properly applied, having regard to the sentence already imposed by Judge Moore
- Whether Sides DCJ gave sufficient weight to the pecuniary penalty order made under the Criminal Assets Recovery Act as a form of punishment already imposed on the applicant
Decision
The Court of Criminal Appeal accepted that Sides DCJ had not given sufficient effect to the principle of totality. The sentences imposed by Sides DCJ were all made concurrent and commenced from the same future date, but the Court found that the commencement date required adjustment to properly account for the cumulative effect of all sentences, including the sentence imposed by Judge Moore for the large commercial quantity charge.
On the Criminal Assets Recovery Act penalty, the Court accepted Adams J's earlier characterisation of the pecuniary penalty order as punitive in character and as part of the applicant's overall punishment for the same criminal conduct. The Court held that this order should be taken into account when determining the additional punishment to be imposed, and found that Sides DCJ had not accorded it sufficient weight.
The Court also took into account the applicant's leg injury, his previous good character, his plea of guilty (noting it had not been entered at the earliest opportunity), and the objective seriousness of the offences. While the length of the individual sentences was retained, the commencement date of all sentences was back-dated by twelve months to 23 May 2004, primarily to give proper effect to the totality principle.
The Court expressly declined to examine the validity of Adams J's reasoning in the Criminal Assets Recovery Act proceedings, accepting his conclusions as a matter the sentencing court was entitled to apply without independent review.
Orders Made
- Leave to appeal granted
- Appeal against sentences allowed
- Sentences imposed by Sides DCJ quashed
- Count 1 (ongoing supply): imprisonment for five years six months, commencing 23 May 2004, with a non-parole period of two years six months expiring 22 November 2006
- Count 2 (supply of heroin, 14 November 2000): fixed term of twelve months commencing 23 May 2004, expiring 22 May 2005
- Count 3 (supply of heroin, 21 November 2000): imprisonment for four years commencing 23 May 2004, with a non-parole period of two years expiring 22 May 2006
- Earliest date of eligibility for release on parole: 22 November 2006
Key Takeaways
- A pecuniary penalty order made under the Criminal Assets Recovery Act that has been characterised as punitive in nature constitutes a form of punishment already received, and a sentencing court must give it adequate weight when determining the further punishment to be imposed for the same underlying conduct.
- The principle of totality requires a sentencing court to consider the overall effect of all sentences, including those imposed by a different judge for related offences arising from the same criminal enterprise, even where sentences are structured as concurrent terms.
- Pleas of guilty that were not entered at the earliest opportunity attract a reduced discount compared to timely pleas, a factor the Court identified but weighed alongside other subjective matters including good character and a medical condition.
- In allowing the appeal, the Court of Criminal Appeal retained the individual sentence lengths but adjusted the commencement date by twelve months, reflecting that the error lay in the sequencing and totality calculation rather than in the assessment of individual sentence lengths.
- Where another court has made a finding that a civil penalty order is punitive in character, a subsequent sentencing court is entitled to accept that conclusion without independently re-examining the underlying reasoning.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Assets Recovery Act (NSW)
- Drug Misuse and Trafficking Act (NSW), ss 25(1) and 25A
Cases:
- NSW Crime Commission v Farah (2003) 142 A Crim R 108 (Adams J, on the punitive character of the Criminal Assets Recovery Act penalty order)