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Court of Criminal Appeal 6 October 2006

Regina v Burgess

[2006] NSWCCA 319

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL RELEVANCE OF STANDARD NON PAROLE PERIOD AFTER PLEA OF GUILTY PAROLE PERIOD

Citation: Regina v Burgess [2006] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 6 October 2006
Judge(s): Sully J, Adams J, Howie J

Background

The respondent was convicted in the District Court of supplying a commercial quantity of methylamphetamine. He was a middle-rung participant in a drug supply organisation, and his involvement was partly driven by his own drug addiction, which was connected to a diagnosed mental disorder. He entered a plea of guilty at the earliest opportunity and demonstrated remorse, with assessed good prospects of rehabilitation.

District Court Judge Bennett sentenced the respondent on the first count to a non-parole period that the Crown later challenged as manifestly inadequate. The Crown appealed to the Court of Criminal Appeal, contending that the sentencing judge failed to engage properly with the standard non-parole period applicable under the Crimes (Sentencing Procedure) Act 1999.

The central concern on appeal was not merely the length of the sentence but the sentencing methodology: whether the sentencing judge had adequately identified the level of objective seriousness of the offending and given sufficient reasons for departing from the standard non-parole period.

  • Whether the sentencing judge erred by failing to identify where the offence fell within the range of objective seriousness
  • Whether the sentencing judge failed to give adequate reasons for departing from the standard non-parole period
  • Whether the resulting sentence was manifestly inadequate
  • How the standard non-parole period under Division 1A of the Crimes (Sentencing Procedure) Act 1999 should function in the sentencing process, particularly where there is a plea of guilty

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentencing judge's discretion had fundamentally miscarried. The primary judgment, delivered by Howie J (with Sully J agreeing), held that the sentencing judge failed to identify the level of objective seriousness of the offending and did not give sufficient significance to the standard non-parole period as a reference point or benchmark in the sentencing process.

Adams J agreed with the orders but added qualifications. His Honour observed that the standard non-parole period is properly used as a reference point after an assessment of all objective and subjective features, consistent with the approach in R v Way (2004) 60 NSWLR 168. Adams J also noted a logical tension identified in R v AJP (2004): the factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 cannot simultaneously be used to assess where an offence falls within the range of objective seriousness and as discrete reasons for departing from the standard non-parole period. Adams J observed this area of jurisprudence was not yet settled.

On resentencing, the Court took into account the respondent's guilty plea (attracting approximately a 25 per cent discount), his mental disorder and addiction, his role as a middle-rung participant, his remorse, and his prospects of rehabilitation. The Court found these factors placed the offending at somewhat below the middle of the range of objective seriousness. Special circumstances were found by reason of the respondent's ongoing need for treatment and counselling upon release. The criminality in the first count was considered so serious that the totality principle would have been infringed by making any part of the second count's sentence cumulative.

Orders Made

  • The Crown appeal was allowed and the sentence on the first count was quashed.
  • In lieu, the respondent was sentenced to a non-parole period of 5 years and 6 months imprisonment, commencing 29 April 2005 and expiring 28 October 2010 (the date of eligibility for release to parole).
  • A balance of term of 2 years and 6 months imprisonment to commence 29 October 2010 was imposed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period functions as a reference point or benchmark in the sentencing process, to be compared with the provisional sentence reached after assessing objective seriousness and all aggravating, mitigating, and subjective factors, including any plea of guilty.
  • A sentencing judge must identify where the offending falls within the range of objective seriousness and give sufficient reasons for any departure from the standard non-parole period; failure to do so constitutes a material sentencing error.
  • Where a plea of guilty has been entered, s 54B of the Crimes (Sentencing Procedure) Act 1999 does not strictly oblige a sentencing judge to explain why the standard non-parole period was not imposed, since the plea and associated utilitarian discount themselves operate as reasons for departure.
  • Adams J identified an unresolved tension in the existing jurisprudence: the s 21A factors cannot logically serve the dual role of situating an offence within the range of objective seriousness and simultaneously justifying departure from the standard non-parole period, though this conflict was not addressed in R v Way and the relevant jurisprudence was described as not yet settled.
  • In resentencing, the double jeopardy principle was applied to moderate the sentence, with the Court describing the result as the lowest term that could properly have been imposed in the circumstances.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 21A(2)(n), 21A(3), 22, 44, 54B, Division 1A

Cases:
- R v Way (2004) 60 NSWLR 168
- R v AJP (2004) 150 A Crim R 575
- R v Shi [2004] NSWCCA 135
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Dang [2005] NSWCCA 430
- Pearce v The Queen (1998) 194 CLR 610