Citation: Young v Regina [2007] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 26 April 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J
Background
The appellant had previously been convicted of deemed supply of ecstasy and received an 18-month sentence that was wholly suspended on his entering into a good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That suspension required him to submit to supervision by the Probation and Parole Service. Critically, on the very day his sentence was suspended, the appellant was already engaged in supplying crystal methylamphetamine to a number of sex workers in the Sydney CBD.
The supply offending, captured through electronic surveillance and intercepted mobile phone calls, occurred between June and August 2005. At least 18 identified acts of supply were recorded, involving quantities ranging from 0.25 grams to 3 grams, with the intercepted calls representing only a sample of the broader dealing activity. The appellant also faced revocation of his good behaviour bond.
In the District Court, Judge Morgan DCJ sentenced the appellant to 3 years' imprisonment with a non-parole period of 18 months for the supply offence (including a possession offence on the Form 1), to be served consecutively to the revocation sentence. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and failed to account for pre-sentence custody.
Legal Issues
- Whether the sentence for the supply offence was manifestly excessive, having regard to comparable sentences and the relevant sentencing principles.
- Whether the sentencing judge had erred by failing to backdate the sentence to account for 51 days of pre-sentence custody served by the appellant.
- Whether the appellant had been improperly indicted (this ground was abandoned at the hearing).
Decision
The Court of Criminal Appeal granted leave to appeal but allowed the appeal only in part. On the question of manifest excess, Rothman J (with whom McClellan CJ at CL and Hidden J agreed) found no identifiable error in the District Court's sentencing approach. The sentencing judge had correctly applied the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act and had given the appellant credit for his guilty plea, the small quantities supplied, and what she accepted as genuine remorse.
A significant aggravating feature was that the appellant committed the supply offences while on bail pending sentencing for a prior drug offence, and then while actually subject to the suspended sentence. McClellan CJ at CL characterised this conduct as confirming the appellant's "propensity for committing drug related offences and a steadfast disobedience of the law." The Court affirmed that offenders who commit crimes while on conditional liberty can expect sentences towards the higher end of the available range, in order to address retribution, deterrence, and community protection.
The Court also addressed the use of sentencing statistics with some care. Rothman J noted that statistics can be misleading and should not be applied mechanically. While the sentence of 3 years with an 18-month non-parole period sat at the upper end of the mid-range on available statistical comparisons, it was not beyond the permissible range given the appellant's recalcitrance.
On the pre-sentence custody issue, the Crown conceded both at first instance and on appeal that 51 days of pre-sentence custody had not been reflected in the sentence start date. The Court corrected this error by backdating the commencement of the non-parole period to 16 November 2006.
Orders Made
- Leave to appeal granted; appeal allowed in part.
- The supply drug sentence imposed by Morgan DCJ on 28 July 2006 (including the Form 1 possession offence) was quashed.
- In lieu of that sentence, the appellant was sentenced to 3 years' imprisonment for the supply of methylamphetamine, comprising a non-parole period of 18 months commencing 16 November 2006 and expiring 15 May 2008, with a balance of term of 18 months expiring 15 November 2009.
- The sentence on the revocation for breach of the good behaviour bond was not disturbed.
Key Takeaways
- Committing further offences while subject to a suspended sentence or good behaviour bond is a significant aggravating factor that can justify a sentence towards the higher end of the available range, particularly where the offending demonstrates a pattern of disregard for court orders.
- The Court of Criminal Appeal confirmed that sentencing statistics require careful and cautious application: they provide useful context but can be misleading, and a sentence within the statistical range is not necessarily appropriate merely because it falls within it.
- No error was established in the primary judge's balancing of the sentencing objectives under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where the resulting sentence sat at the higher end of the mid-range.
- Where pre-sentence custody has not been properly accounted for in the commencement date of a sentence, that is a discrete and correctable error, distinct from a finding of manifest excess in the head sentence.
- In dismissing the manifest excess ground, the Court applied the principle from Veen v R (No 2) that retribution, deterrence, and protection of society may each justify a heavier sentence where an offender demonstrates continued recalcitrance.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including sections 3A and 12
- Drug Misuse and Trafficking Act 1985 (NSW), sections 10(1) and 25(1)
Cases:
- Veen v R (No 2) (1988) 164 CLR 465
- Markarian v R (2005) 79 ALJR 1048
- R v Ponfield (1999) 48 NSWLR 327
- R v Gip [2006] NSWCCA 115
- R v Bardo, NSWCCA, unreported, 14 July 1992
- R v Clarke, NSWCCA, unreported, 15 March 1990