Citation: Taylor v Regina [2007] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 4 July 2007
Judges: Basten JA, Grove J, Howie J
Background
The appellant pleaded guilty in the Local Court to four charges and was committed to the District Court for sentencing. The charges comprised two counts of supplying a prohibited drug, one count of supplying prohibited drugs on an ongoing basis (methylamphetamine), and one count of doing an act with intent to pervert the course of justice. The last charge arose from the production of a false employment letter, conduct entirely separate from the drug offending.
Woods ADCJ sentenced the appellant at Dubbo District Court in May 2006. The most serious sentence was a non-parole period of three years with an additional term of 18 months for the ongoing supply charge. All four sentences were ordered to commence on the same date and run concurrently, meaning the three lesser sentences were absorbed within the longest.
The appellant sought leave to appeal against sentence on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the overall sentences, and each individual sentence, were manifestly excessive having regard to the nature and scale of the offending.
- Whether the sentencing judge erred by expressly declining to find "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, while simultaneously fixing additional terms that exceeded one-third of each non-parole period (the outcome that section permits only where special circumstances are found).
- Whether the internal inconsistency in the sentencing judge's process required the Court of Criminal Appeal to resentence the appellant to lesser terms.
- Whether the order for full concurrency across all four sentences, including the perverting-the-course-of-justice charge, was appropriate.
Decision
The Court unanimously dismissed the appeal. Grove J (with whom Howie J agreed) concluded that, taking into account the scale of the drug operation, the appellant's prior record including a prior conviction for drug supply, the entirely separate criminality involved in the fourth charge, and the leniency already extended by ordering all sentences to run concurrently, no sentence less severe than that imposed was warranted in law.
The sentencing judge had expressly found no special circumstances under s 44(2), yet had specified additional terms representing 50% of each non-parole period. Under s 44, the balance of term must not exceed one-third of the non-parole period unless special circumstances are found. The judge's stated position and the actual sentences were therefore contradictory, with the sentences favouring the appellant by producing shorter non-parole periods than a strict application of the statutory formula would have generated.
Basten JA observed that this inconsistency constituted an error in the sentencing process. However, because material before the sentencing judge (including the appellant's relatively young age and need for rehabilitation from drug and alcohol addiction, which the Crown Prosecutor in the District Court had acknowledged as capable of supporting the finding) would have justified a finding of special circumstances, the Court of Criminal Appeal made that finding itself. This provided a proper legal foundation for the sentences as imposed.
On the question of concurrency, both Basten JA and Grove J observed that at least some element of cumulation might have been expected for the perverting-the-course-of-justice offence, given its separate and independent criminal character. However, because the Crown had not challenged that aspect, the element of leniency it represented was factored into the Court's overall proportionality assessment rather than corrected.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the balance of term in a sentence must not exceed one-third of the non-parole period unless the sentencing court makes a specific finding of special circumstances. An additional term exceeding that proportion without such a finding constitutes a legal error.
- A procedural error by a sentencing judge does not automatically entitle an offender to a lesser sentence. Where the sentences as imposed were not manifestly excessive and no less severe sentence was warranted in law, the Court of Criminal Appeal will decline to resentence even if the process was flawed.
- Where sufficient material existed before the sentencing judge to support a finding of special circumstances, the Court of Criminal Appeal may make that finding itself on appeal, thereby providing the necessary legal basis for the sentences already imposed.
- Ordering an entirely separate offence (such as perverting the course of justice) to be served concurrently with drug supply charges may reflect a degree of leniency. In dismissing the appeal, the Court took that leniency into account when assessing the overall proportionality of the sentences.
- Section 44(3) of the Crimes (Sentencing Procedure) Act 1999 provides that non-compliance with the balance-of-term requirement does not invalidate a sentence, but the non-compliance nonetheless constitutes an error of law.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A-54D
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases:
- Astill (No 2) (1992) 64 A Crim R 289
- R v Hampton (1998) 44 NSWLR 729
- R v Kairouz [2005] NSWCCA 247
- R v Oastler (unreported, 2 November 1992, NSWCCA)
- R v Perez [2004] NSWCCA 218
- R v Way (2004) 60 NSWLR 168
- Singh v DPP (2006) 164 A Crim R 284