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Court of Criminal Appeal 3 August 2006

Regina v Vickovic

[2006] NSWCCA 231

DrugsFraud & dishonestyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE DRUG COURT CROWN APPEAL AGAINST FINAL SENTENCE NON CUSTODIAL IMPOSITIONS

Citation: Regina v Vickovic [2006] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 3 August 2006
Judge(s): Giles JA, Grove J, Hidden J

Background

The respondent, a Drug Court participant, had pleaded guilty to 26 charges spanning a range of serious offences. These included possessing equipment and materials for making false driver's licences, producing those licences, using false instruments to pervert the course of justice, and a series of fraud-related offences involving false documents used to obtain money from a bank and to acquire a Jet Ski. He also faced charges relating to presenting false documents in court proceedings to obtain a more lenient sentence.

The respondent had been admitted to the Drug Court programme at Parramatta, with initial sentences suspended to allow him to participate. His sentencing was conducted in stages over several appearances before two different judges. By the time of his final sentence in September 2005, he had completed the programme and was due to graduate the following day.

The Crown appealed against the final sentences imposed by Judge Barnett, contending that non-custodial outcomes in the form of good behaviour bonds were manifestly inadequate given the number and seriousness of the offences involved.

  • Whether the final sentences imposed by the Drug Court were manifestly inadequate, individually or collectively
  • Whether the sentencing judge erred by failing to achieve appropriate cumulation or partial cumulation of sentences to reflect the totality of the respondent's criminality
  • The proper approach to Crown appeals from Drug Court final sentences, including what weight should be given to an offender's participation in and completion of the Drug Court programme

Decision

The Court of Criminal Appeal dismissed the Crown appeal. Grove J, with whom Giles JA and Hidden J agreed, found that no error in Judge Barnett's approach had been demonstrated. The Court acknowledged that, while the Drug Court exercises a unique jurisdiction, final sentences imposed there are not immune from review for manifest inadequacy. However, the special statutory context of the Drug Court must be taken into account when assessing whether the sentencing discretion has miscarried.

On the totality and cumulation ground, the Court confirmed that wholly concurrent sentences are not inherently wrong. Applying the joint judgment in Pearce v The Queen, the Court noted that a sentencing judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence. Cumulation is not mandatory in every case, and concurrent sentences may sufficiently reflect the totality of criminality where the circumstances warrant.

The Court gave significant weight to the respondent's "gold medal" graduation from the Drug Court programme, noting that graduation represents the highest standard of achievement under the relevant legislation and is reserved for offenders who fully comply with its requirements. Under the Drug Court Act, a sentencing judge imposing final sentences is mandated by statute to give effect to the nature of the offender's participation in the programme. There was no challenge to the quality of the respondent's participation.

The Court concluded that the sentences imposed by Judge Barnett fell within the boundaries of a sound exercise of sentencing discretion. Non-custodial outcomes were not mandatory, but no miscarriage of discretion had occurred in ordering them in these circumstances.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that Drug Court final sentences are reviewable for manifest inadequacy, but must be assessed within the special statutory context in which the Drug Court exercises its sentencing discretion.
  • Under the Drug Court Act, a sentencing judge imposing final sentences is statutorily required to give effect to the nature of the offender's participation in the Drug Court programme, which can lawfully support a non-custodial outcome even for a large number of serious offences.
  • Non-custodial final sentences following completion of a Drug Court programme are not mandatory, but where an offender achieves "gold medal" graduation, a sentencing judge who imposes such sentences does not necessarily miscarry the exercise of discretion.
  • Applying Pearce v The Queen, the Court reaffirmed that cumulation or partial cumulation of sentences across multiple offences is not an automatic requirement; wholly concurrent sentences may sufficiently reflect totality where that is appropriate on the facts.
  • No error was established in the sentencing judge's treatment of the individual offences or his overall approach to the final sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW)
- Drug Court Act 1998 (NSW), s 12(2)(a)

Cases:
- Everett v The Queen (1994) 181 CLR 295
- Griffiths v The Queen (1977) 137 CLR 293
- Johnson v The Queen (2004) 205 ALR 346
- Malvaso v The Queen (1989) 168 CLR 227
- Pearce v The Queen (1998) 194 CLR 610
- R v Ohar (2004) 59 NSWLR 596
- R v Sheedy (unreported, Drug Court, 17 February 2003)
- R v Toman [2004] NSWCCA 31
- R v Trindall (2002) 133 A Crim R 119