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Court of Criminal Appeal 21 December 2006

Chang v Regina

[2006] NSWCCA 409

Assault & violenceDrugsTheft & property
CRIMINAL LAW: SEPARATE INCIDENTS DELAY IN PROSECUTION OF SUPPLY CHARGE ACCUMULATION OF SENTENCES TOTALITY WHETHER AGGREGATE SENTENCE EXCESSIVE

Citation: Chang v Regina [2006] NSWCCA 409
Court: New South Wales Court of Criminal Appeal
Date: 21 December 2006
Judge(s): McClellan CJ at CL, Hidden J, Hislop J

Background

The applicant pleaded guilty in the District Court to two serious offences committed on separate occasions. The first was offering to supply heroin in a commercial quantity, arising from a controlled police operation in May 2002. The second was aggravated break and enter with serious assault, arising from an incident in August 2004 in which the applicant forced entry into a home and punched a 16-year-old victim while demanding unpaid rent.

The sentencing judge imposed a three-year fixed term for the drug offence and a five-year sentence (with a two-year-and-three-month non-parole period) for the break and enter offence. Critically, the sentence on the second charge was ordered to run entirely after the sentence on the first, producing an aggregate of eight years with an effective non-parole period of five years and three months.

The applicant sought leave to appeal, contending that the sentencing judge gave insufficient weight to the delay in prosecuting the drug charge and erred by imposing wholly cumulative sentences without adequately applying the totality principle.

  • Whether the approximately two-year delay between the commission of the drug offence and the applicant's arrest warranted a reduction in sentence as a mitigating factor.
  • Whether the sentencing judge erred by wholly accumulating the two sentences, and whether the resulting aggregate sentence was manifestly excessive when the totality principle was properly applied.

Decision

On the delay ground, the Court of Criminal Appeal rejected the argument. The significant portion of the delay occurred before the applicant was arrested or knew he was under suspicion. The Court distinguished cases such as R v Todd, which concern offenders kept in suspense by the criminal justice system after they know they face charges. Without evidence that the applicant suffered relevant detriment, such as prolonged emotional turmoil or fear of exposure, the delay carried no mitigating weight in the circumstances.

On the accumulation ground, the Court accepted that wholly cumulative sentences were available in principle given that the offences were entirely unconnected and separated by a substantial period of time. However, the Court found that the sentencing judge had not undertaken the further necessary step of considering whether the totality principle required some moderation of one or both sentences after deciding to accumulate them. That omission constituted an error.

The Court assessed the aggregate sentence of eight years as manifestly excessive in all the circumstances, including the applicant's subjective case and the sentencing discounts already applied. Consistently with the approach in Johnson v The Queen, the Court preferred to address the error through partial rather than total accumulation, reducing both the aggregate term and the effective non-parole period by one year each.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court affirmed, but the sentence on the second charge directed to commence on 6 August 2006 (rather than 6 August 2007).
  • Applicant eligible for release on parole on 6 November 2008.

Key Takeaways

  • A delay between the commission of an offence and an offender's arrest does not automatically warrant mitigation of sentence. The delay must have caused the offender a relevant detriment, such as sustained emotional turmoil, for it to be weighed in their favour.
  • Where an offender remains unaware of police suspicion during the period of delay, the reasoning in R v Todd (which concerns known, pending charges) does not apply.
  • Wholly cumulative sentences are available for unconnected offences committed at separate times, but sentencing courts must still address whether the totality principle requires moderation of the overall sentence after deciding to accumulate.
  • In upholding the appeal, the Court of Criminal Appeal confirmed that partial accumulation is often the appropriate mechanism for giving effect to the totality principle, consistent with Johnson v The Queen.
  • An aggregate sentence that implies an excessively high starting point, once discounts for guilty pleas and remorse are factored in, may itself indicate that the totality principle was not properly applied.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 112(2)

Cases
- R v Todd [1982] 2 NSWLR 517
- R v Holyoak (1995) 82 A Crim R 502
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1998) 166 CLR 59
- Johnson v The Queen [2004] HCA 15