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16
Court of Criminal Appeal 10 February 2006

Des Rosiers v Regina

[2006] NSWCCA 16

Also reported as (2006) 159 A Crim R 549
Drugs
SENTENCE APPEAL SUPPLY LARGE COMMERCIAL QUANTITY OF LSD FAILURE TO COMPLY WITH PEARCE RELEVANCE OF STANDARD NON PAROLE PERIOD.

Citation: Des Rosiers v Regina [2006] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 10 February 2006
Judge(s): McClellan CJ at CL, Howie J, Latham J

Background

The appellant pleaded guilty in Lismore Local Court to four drug supply charges, including supplying a large commercial quantity of LSD, supplying an indictable quantity of MDMA, supplying a traffickable quantity of cannabis, and supplying a prohibited drug (LSD). Four further charges were placed on a Form 1 document, meaning they were taken into account at sentencing without separate convictions being recorded.

The charges arose after Federal Police and NSW Police executed a search warrant at the appellant's premises on the NSW north coast on 20 April 2004. Among the items seized were 19 vials of liquid LSD (representing 98 times the large commercial quantity threshold), approximately 90 grams of MDMA, and over 700 grams of cannabis. Telephone intercept evidence linked the appellant to the production and distribution of the LSD.

At the Lismore District Court, Black QC DCJ imposed an 18-year sentence with a 12-year non-parole period for the principal charge, and 12-year sentences with 8-year non-parole periods for each of the MDMA and cannabis supply offences. All sentences ran concurrently from the date of arrest. The appellant sought leave to appeal those sentences.

  • Whether the District Court imposed a sentence exceeding the applicable statutory maximum penalty for the principal LSD supply offence
  • Whether the sentencing judge failed to comply with the principle in Pearce v The Queen (1998) 194 CLR 610, which requires courts to sentence separately and distinctly for each offence
  • Whether the sentencing judge misapplied the procedural requirement under s 44 of the Crimes (Sentencing Procedure) Act 1999 to set the non-parole period first before determining the balance of term
  • How the standard non-parole period provisions applied to the offences, and what weight they carried in fixing the appropriate sentence

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal on the ground that the sentences imposed for the MDMA and cannabis supply charges each exceeded the statutory maximum penalties for those offences under the Drug Misuse and Trafficking Act 1985. This alone required the sentences to be quashed and fresh sentences imposed.

The Court also found that the sentencing judge had failed to comply with the principle in Pearce, which requires a court to identify the appropriate sentence for each offence separately, rather than simply imposing uniform sentences across multiple charges without individually reasoned assessments. The failure to engage in that distinct analysis constituted a further error warranting resentencing.

On resentencing, the Court applied a 25 percent discount to each offence to reflect the guilty pleas. It found special circumstances existed, justifying a ratio of non-parole period to total sentence that departed from the statutory default. The Court concluded that, given the overwhelming gravity of the principal LSD charge and the principles of denunciation and retribution it engaged, the totality of the appellant's criminality was adequately captured by the sentence for that primary offence. All sentences were therefore ordered to run concurrently.

The Court also noted, though it was not a ground of appeal, that the sentencing judge appeared to have applied the pre-amendment version of s 44 rather than the post-February 2003 procedure (which requires the non-parole period to be fixed first). That technical error was addressed in the resentencing exercise.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentences imposed by Black QC DCJ on 24 February 2005 quashed
  • Supply a Large Commercial Quantity of LSD (with Form 1 offences taken into account): non-parole period of 12 years from 20 April 2004 (expiring 19 April 2016), balance of term 6 years (expiring 19 April 2022)
  • Supply an Indictable Quantity of MDMA: non-parole period of 5 years from 20 April 2004 (expiring 19 April 2009), balance of term 2 years 6 months (expiring 19 October 2011)
  • Supply a Traffickable Quantity of Cannabis: non-parole period of 2 years from 20 April 2004 (expiring 19 April 2006), balance of term 1 year (expiring 19 April 2007)
  • Supply LSD: fixed term of 2 years from 20 April 2004 (expiring 19 April 2006)
  • All sentences concurrent; eligible for parole on 20 April 2016

Key Takeaways

  • A sentence that exceeds the statutory maximum penalty for an offence is an error of law that automatically vitiates that sentence and requires resentencing, regardless of any other merit in the sentencing exercise.
  • Under Pearce v The Queen, a sentencing court must assess each offence individually and articulate a distinct sentence for it. Imposing uniform or formulaic sentences across multiple charges without separate reasoning constitutes a failure to comply with that obligation.
  • The post-February 2003 version of s 44 of the Crimes (Sentencing Procedure) Act 1999 requires the non-parole period to be fixed first, with the balance of term then determined. Applying the earlier methodology is a technical error, even if it does not automatically justify appellate intervention.
  • In applying totality principles, the Court of Criminal Appeal confirmed that where a principal offence is of such exceptional gravity that its sentence already reflects the full range of an offender's criminality, concurrent sentences for the remaining charges can be appropriate without further accumulation.
  • A guilty plea discount of 25 percent was applied across the offences, and special circumstances were found to exist, permitting a longer balance of term relative to the non-parole period than the statutory default ratio.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Way [2004] NSWCCA 131
- R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175
- R v Cramp [2004] NSWCCA 264
- R v Itaoui [2005] NSWCCA 415
- R v Tadrosse [2005] NSWCCA 145
- R v O'Neill [2005] NSWCCA 353
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Nai Poon (2003) 56 NSWLR 284
- Markarian v The Queen [2005] HCA 25
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 (2002) 56 NSWLR 146
- R v Gallagher (1991) 23 NSWLR 220
- R v Felton [2002] NSWCCA 443
- R v Mangelsdorf & Ors (1995) 83 A Crim R 272