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Court of Criminal Appeal 22 September 2006

Jesse Daniel Heilpern v R

[2006] NSWCCA 311

Drugs
SUPPLY OF PROHIBITED DRUGS (X2) OFFENDER DRUG DEPENDENT SIGNIFICANCE OF FORM 1 MATTERS WHETHER OFFENDER IN FACT ON A BOND

Citation: Jesse Daniel Heilpern v R [2006] NSWCCA 311
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2006
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The applicant, a young man aged 20 at the time of the offences, pleaded guilty in the District Court to two counts of supplying ecstasy in the Northern Rivers region of New South Wales in 2004. The first count involved 33.9 grams supplied over several weeks; the second involved 67 grams supplied on a single occasion. Two further offences relating to cannabis possession and cultivation were taken into account on a Form 1 document alongside the first count.

Following his arrest, the applicant spent 103 days in custody before being released on bail on condition that he enter the Odyssey House drug rehabilitation program. By the time of sentencing in June 2006, he had spent more than 15 months at Odyssey House, with evidence describing his progress as excellent and his personal transformation as significant.

The District Court sentenced the applicant to effective total terms resulting in a combined non-parole period of 18 months. The applicant sought leave to appeal on multiple grounds, arguing various errors in the sentencing judge's reasoning and calculations.

  • Whether the sentencing judge gave adequate and appropriate credit for the time spent by the applicant in Odyssey House as a form of quasi-custody
  • Whether the sentencing judge failed to take into account the applicant's pleas of guilty
  • Whether the Form 1 matters were properly taken into account without breaching the principle in De Simoni v The Queen (which prohibits sentencing for offences more serious than those charged)
  • Whether the finding of "special circumstances" needed to be applied to both sentences when calculating the ratio of non-parole period to total term
  • Whether the sentencing judge erred in treating the applicant as being subject to a good behaviour bond at the time of the offences, which had been treated as an aggravating factor

Decision

The Court granted leave to appeal and allowed the appeal on the basis of a combination of established errors. Buddin J, with whom McClellan CJ at CL and Rothman J agreed, identified several grounds that warranted intervention and re-sentencing.

On the bond issue, the Court found a clear factual error. The applicant had lodged a notice of appeal against the bond imposed in October 2004, which had the effect of staying that sentence under the relevant legislation. By the time of the present offences, the appeal had been allowed and a fine substituted. The applicant was therefore not subject to a bond at the time of the offences, and the sentencing judge's contrary conclusion was wrong.

The Court also found that the combination of errors across multiple grounds was sufficient to justify intervention. The re-sentencing restructured the non-parole periods for both counts so that they expired on the date of the appeal hearing, with the practical result that the applicant was released on parole immediately.

The Court was careful in its analysis of the Form 1 matters, the credit for Odyssey House time, and the application of Pearce principles to the two concurrent sentences. While some grounds were not upheld, the overall pattern of error could not stand.

Orders Made

  • Leave to appeal granted
  • Appeals against sentence allowed
  • Sentences imposed in the District Court quashed
  • Count 1 (including Form 1 matters): non-parole period commencing 9 June 2005 and expiring 22 September 2006; total sentence of 2 years expiring 8 June 2007
  • Count 2: non-parole period commencing 9 June 2006 and expiring 22 September 2006; total sentence of 2 years expiring 8 June 2008
  • Applicant to be released on parole on the date of the hearing

Key Takeaways

  • The Court of Criminal Appeal confirmed that time spent in a residential rehabilitation program such as Odyssey House is treated as a form of quasi-custody, and a sentencing court must give appropriate credit for that period when structuring a sentence.
  • A factual error about whether an offender was subject to a bond at the time of the offences constitutes a sentencing error; where no bond was in operation, treating it as an aggravating factor cannot stand.
  • Under the principles in Pearce v The Queen, when imposing cumulative sentences, a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 must be applied consistently and coherently across both sentences.
  • Form 1 matters may legitimately be taken into account at sentencing, but they must be addressed in a manner consistent with the principle in De Simoni and must not effectively punish an offender for a more serious offence than the one charged.
  • Where multiple errors in sentencing are established in combination, even if some individual grounds would not alone warrant intervention, the cumulative effect can justify the appellate court quashing the sentences and re-sentencing the offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 44(2) (special circumstances) and s 9 (good behaviour bonds)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 63 (stay of sentence on lodging appeal)

Cases:
- Pearce v The Queen (1998) 194 CLR 598
- De Simoni v The Queen (1981) 147 CLR 383
- R v Delaney (2003) 59 NSWLR 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Grbin [2004] NSWCCA 220
- R v Lao [2003] NSWCCA 315
- R v Sparos [2002] NSWCCA 52
- R v Clark (NSWCCA, unreported, 15 March 1990)