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Court of Criminal Appeal 10 March 2006

Jason George DERON v REGINA

[2006] NSWCCA 73

Drugs
CRIMINAL LAW SENTENCE APPEAL CRIMINAL LAW SENTENCE APPEAL OFFENDERS’ SENTENCES.

Citation: Jason George Deron v Regina [2006] NSWCCA 73
Court: New South Wales Court of Criminal Appeal
Date: 10 March 2006
Judge(s): Spigelman CJ, Simpson J, Johnson J

Background

The appellant was convicted after a nine-day trial of supplying heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, following a prolonged joint operation with a co-offender in the Lake Macquarie and Newcastle areas between October and December 2002. The sentencing judge described both men as "extremely active and successful mid-range dealers" engaged in a commercial enterprise involving supply to lower-level dealers and directly to users.

The co-offender pleaded guilty and was sentenced separately by a different District Court judge to 3 years' imprisonment, with 91 days of pre-sentence custody expressly deducted by backdating the sentence. The appellant, who pleaded not guilty, was sentenced to 4 years and 10 months commencing from the date of conviction, with the sentencing judge stating he had taken into account approximately 5 months of pre-sentence custody without backdating.

The appellant sought leave to appeal on two grounds: first, that the sentence created an unjustified disparity with his co-offender's sentence; and second, that the sentencing judge failed to properly account for the appellant's 142 days of pre-sentence custody.

  • Whether a sentencing judge is required to account for pre-sentence custody by backdating a sentence, rather than by reducing the sentence otherwise imposed.
  • Whether the difference in sentence magnitude between the appellant and his co-offender gave rise to a legitimate sense of grievance on parity grounds.
  • Whether the co-offender's protective custody status justified the sentencing differential between the two offenders.

Decision

Pre-sentence custody: The Court of Criminal Appeal rejected the argument that pre-sentence custody must be reflected through backdating. Spigelman CJ confirmed there is no such rule: a sentencing judge may instead reduce the sentence that would otherwise have been imposed, provided the pre-sentence custody is demonstrably taken into account. In this case, the sentencing judge expressly stated he had regard to the period, and rounded it up in the appellant's favour from 4 months and 22 days to "approaching five months." That was sufficient.

The Court distinguished this case from R v Howard [2001] NSWCCA 309, where round-number sentences gave reason to doubt that pre-sentence custody had been genuinely reflected in the order. Here, the rounding was favourable to the appellant and provided no basis for complaint.

Parity: Accounting properly for the pre-sentence custody meant the appellant's effective head sentence was 5 years and 3 months, compared with a starting point of 4 years and 8 months for the co-offender before the guilty plea discount was applied. That difference of approximately 7 months required examination on parity grounds.

The Court found the differential was justified. The co-offender was in protective custody and would remain so throughout his sentence, a circumstance that makes imprisonment materially more burdensome. Spigelman CJ held that this factor alone fell within the legitimate range of sentencing discretion and supported the differentiation McGuire DCJ arrived at. Both Simpson J and Johnson J agreed. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • There is no rule requiring a sentencing judge to account for pre-sentence custody by backdating the sentence. Deduction from the sentence otherwise imposed is equally permissible, provided the pre-sentence custody is demonstrably reflected in the sentencing order.
  • Where a sentencing judge expressly states that pre-sentence custody has been taken into account, the Court of Criminal Appeal will generally accept that statement and act on it, particularly where any rounding of the period was favourable to the offender.
  • The principle from R v Howard [2001] NSWCCA 309, that pre-sentence custody must be "demonstrably reflected" in the sentencing order, was affirmed but distinguished. Round-number sentences may raise doubt in some cases; favourable rounding does not.
  • Protective custody, which makes a custodial term materially more onerous, is a legitimate factor that can justify a sentencing differential between co-offenders on parity grounds.
  • In dismissing the appeal, the Court of Criminal Appeal applied its standard role as a court of error, asking only whether the sentencing discretion was exercised within a legitimate range, not whether it would have arrived at the same result itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Howard [2001] NSWCCA 309