AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 27 April 2006

KDOUH v. REGINA

[2006] NSWCCA 140

Drugs

Citation: KDOUH v. Regina [2006] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 27 April 2006
Judges: McClellan CJ at CL, James J, Hall J

Background

The appellant was convicted in the District Court of two counts of supplying heroin (a prohibited drug) under s.25(1) of the Drug Misuse and Trafficking Act 1985, following a jury trial. The convictions arose from two separate transactions involving small quantities of heroin sold to undercover police operatives at Kings Cross in September 2004. The jury acquitted him of the more serious charge of ongoing supply under s.25A(1) but returned guilty verdicts on the alternative counts.

At the time of the offences, the appellant was on parole for an earlier offence of entering a dwelling with intent. Following his arrest for the drug supply offences in October 2004, the Parole Board revoked his parole and ordered him to serve the remaining balance of approximately one month and five days, expiring on 12 November 2004.

Judge Woods of the District Court sentenced the appellant to concurrent terms of three years imprisonment, commencing 12 November 2004 (the date his parole period expired) with non-parole periods of two years. The appellant sought leave to appeal on two grounds: that the sentence involved double punishment, and that it was manifestly excessive.

  • Whether the sentencing judge erred by commencing the sentence on 12 November 2004 (the expiry of the parole balance), rather than backdating it to 8 October 2004 (the date of arrest), thereby allegedly punishing the appellant twice for his breach of parole.
  • Whether the total sentence of three years imprisonment with a two-year non-parole period was manifestly excessive in all the circumstances.

Decision

On the double punishment ground, the Court rejected the appellant's argument that failing to backdate the sentence to the date of arrest constituted impermissible double punishment. Relying on the Court of Criminal Appeal's earlier decision in Callaghan v R [2006] NSWCCA 58, the Court confirmed that a sentencing judge retains a discretion on whether and to what extent to backdate a sentence where parole has been revoked. There is no absolute rule requiring backdating in all such cases.

The Court noted that in this case the appellant had been released on parole only three months before committing the offences. Where re-offending occurs very shortly after release and the balance of the parole term is short, it may be appropriate to treat the entire period of custody up to the expiry of the parole term as referable to the earlier offences rather than to the new ones. The sentencing judge's decision not to backdate was therefore within the permissible exercise of that discretion.

On the manifestly excessive ground, the Court observed that the offences carried a maximum penalty of 15 years imprisonment, reflecting the seriousness with which the legislature treats supply offences. The appellant received a 25 percent discount on sentence for his plea of guilty to the first and third transactions, reducing an indicated sentence of four years to three years. His poor criminal record, including a prior conviction for ongoing supply of ecstasy, was a relevant aggravating factor, as was the statutory aggravating circumstance that the offences were committed while on parole. The concurrent nature of the sentences also operated in his favour.

The Court concluded that the three-year term with a two-year non-parole period fell well within the range available to the sentencing judge. No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the approach confirmed in Callaghan v R [2006] NSWCCA 58, a sentencing judge is not required in every case to backdate a sentence to the date of arrest where parole has been revoked; the question is a matter of discretion, depending on the particular circumstances.
  • Where an offender re-offends within a very short period after release on parole and the outstanding balance of the parole term is brief, a sentencing court may legitimately treat the entire period of pre-sentence custody as attributable to the earlier sentence.
  • Committing an offence while on parole is a statutory aggravating factor under s.21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 that a sentencing court is required to take into account.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal emphasised that concurrent sentences and a plea discount together reduced the sentencing burden on the appellant, leaving the resulting term within the available range.
  • No error was established in the District Court's exercise of its sentencing discretion, and the Court of Criminal Appeal declined to intervene.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss.25(1), 25A(1), 25A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.21A(2)(j)

Cases:
- Callaghan v R [2006] NSWCCA 58
- R v Kitchener [2003] NSWCCA 134
- R v Kaiva (CCA, unreported, 9 November 1998)
- R v Zamagias [2002] NSWCCA 17
- R v Gale (CCA, unreported, 20 April 1993)