Citation: Mulato v Regina [2006] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 11 September 2006
Judges: Spigelman CJ, Simpson J, Adams J
Background
The appellant was convicted of a serious drug offence involving the supply of a commercial quantity of methylamphetamine (520.1 grams at low purity) contrary to the Drug Misuse and Trafficking Act 1985. He was found with drugs packaged for sale, a second phone dedicated to dealing, and was planning to attend local clubs that evening to sell them. The sentencing judge in the District Court found him to be a true supplier and principal in the transaction.
The appellant pleaded guilty at arraignment, was found to be genuinely remorseful with good rehabilitation prospects, and had little or no prior criminal record. He had also spent a substantial period on remand before being sentenced, in conditions more onerous than those available to sentenced prisoners.
The District Court imposed a sentence with a non-parole period that the appellant challenged on the basis, among others, that the sentencing judge had used the standard non-parole period of ten years as a mathematical starting point rather than treating it as a guidepost, and that the resulting sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by treating the standard non-parole period as a starting point and applying a mathematical deduction, rather than using it as a benchmark or reference point
- Whether the sentencing judge gave adequate weight to the maximum penalty when exercising the sentencing discretion
- Whether the sentencing judge gave sufficient weight to the appellant's subjective circumstances, including remorse, rehabilitation prospects, youth, and limited criminal history
- Whether the period spent on remand, and the harsher conditions it entailed, warranted a downward adjustment beyond a simple calendar backdating of the sentence
- Whether the overall sentence was manifestly excessive
Decision
The Court allowed the appeal, with all three judges agreeing that the sentence was manifestly excessive, though the judges differed modestly on the substituted sentence.
Spigelman CJ confirmed it is an error of principle to select a specific figure, whether a maximum sentence, a standard non-parole period, or any other anchor point, and to add or subtract factors in a mechanical, mathematical way. The standard non-parole period, as established in R v Way, serves as a benchmark or guidepost to promote consistency in sentencing. It is not a fixed starting figure from which arithmetic deductions are made. This principle applies even where, as here, the standard non-parole period is not directly applicable because the offender pleaded guilty.
Adams J, whose judgment addressed the substantive grounds in detail, found that the sentencing judge's reasoning disclosed an impermissible approach: the judge appeared to treat the ten-year standard non-parole period as a baseline and then apply percentage reductions for mitigating factors, rather than exercising a holistic discretion. Adams J also found that the significant time spent on remand, with its associated restrictions and limited access to programs, warranted more than a mechanical calendar adjustment in the final sentence, and that this, combined with other subjective matters, contributed to the manifest excessiveness of the sentence.
Spigelman CJ and Simpson J proposed a non-parole period of five years with a balance of term of three years. Adams J proposed a slightly lower figure of four years and three months, citing the very substantial proportion of the sentence already served on remand as justification for that modest departure. The majority position (five years non-parole, three years balance of term) prevailed as the court's final orders.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Original sentence quashed
- Substituted sentence imposed: non-parole period of five years, balance of term of three years
Key Takeaways
- Using the standard non-parole period as a mathematical starting point, from which mitigating factors are deducted item by item, constitutes an error of sentencing principle. The standard non-parole period is a benchmark or guidepost, not an anchor for arithmetic calculation.
- The Court of Criminal Appeal confirmed that this principle applies even in cases where the standard non-parole period is not directly applicable, such as where the offender has entered a plea of guilty.
- A conviction and the associated sentencing exercise requires the court to consider all objective and subjective factors holistically, without impermissibly confining the sentencing discretion by fixing on a single numerical reference point.
- Lengthy periods on remand may warrant a downward adjustment to the overall sentence beyond simple backdating. Remand conditions, including maximum security classification and restricted access to rehabilitation programs, can make that period of custody materially harsher than sentenced imprisonment.
- Where multiple judges in a collegiate court propose slightly different substituted sentences, the difference may reflect the weight each judge assigns to particular subjective factors, such as the extent of time already served on remand.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999, s 54B(2)
- Drug Misuse and Trafficking Act 1985, s 25(2)
Cases:
- AT v R [2005] NSWCCA 410
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Blair [2005] NSWCCA 78; 152 A Crim R 462
- R v Davies [2004] NSWCCA 319
- R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71
- R v Poon (2003) 56 NSWLR 284
- R v Sangalang [2005] NSWCCA 171
- R v Shi [2004] NSWCCA 135
- R v Way (2004) 60 NSWLR 168
- Vu v R [2006] NSWCCA 188