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38
Court of Criminal Appeal 24 September 2007

R v KNIGHT R v BIUVANUA

[2007] NSWCCA 283

Also reported as (2007) 176 A Crim R 338
Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SUPPLY ECSTASY HUSBAND AND WIFE CO OFFENDERS PARITY BETWEEN CO

Citation: R v Knight; R v Biuvanua [2007] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 24 September 2007
Judge(s): McClellan CJ at CL; Hidden J; Howie J

Background

A husband and wife were sentenced in the District Court after pleading guilty to serious drug supply offences involving ecstasy. Both were sentenced by Murrell DCJ on 24 May 2007. The Crown appealed both sentences, arguing they were manifestly inadequate.

The wife's letter to the sentencing court had notably described her husband as a good man who acted at her request, and asked the court to allow him to return to their children. The sentencing judge assessed the objective criminality of both offenders as "at least mid range" but imposed sentences that the Crown contended did not properly reflect that assessment.

The Court of Criminal Appeal heard both Crown appeals together, given the close relationship between the two offenders and the parity issues that arose.

  • Whether the sentences imposed in the District Court were manifestly inadequate for serious drug supply offences
  • Whether the sentencing judge properly applied the standard non-parole period framework, as established in R v Way (2004) 60 NSWLR 168
  • Whether the non-parole period imposed on the wife reflected her objective criminality, where the judge had assessed the offending as "at least mid range"
  • Whether the Crown's appeal against the husband's sentence could succeed, given that the Crown had framed it primarily as a parity argument rather than as an independent assertion of manifest inadequacy

Decision

The Court of Criminal Appeal allowed the Crown appeal against the wife's sentence and dismissed the Crown appeal against the husband's sentence, though it noted significant reservations about the latter.

On the wife's sentence, the Court found that the non-parole period imposed did not adequately reflect the sentencing judge's own finding that the objective criminality was "at least mid range." The standard non-parole period serves as a legislative benchmark or guidepost against which a sentence should be measured, and a significant departure from it requires sound justification. Where a sentencing judge acknowledges that offending reaches at least the midpoint of seriousness, the resulting sentence must be consistent with that assessment.

The Court noted that, in resentencing the wife, it was required to apply the principle of double jeopardy (which operates in favour of an offender facing a Crown appeal by pushing the resentenced term toward the lower end of the appropriate range). The Court also took into account a finding of special circumstances made at first instance, to which the Crown had not objected. The sentence that would have been appropriate at first instance, before any plea discount, was identified as 18 years' imprisonment. The resentenced term was lower, reflecting double jeopardy and the plea.

On the husband's sentence, the Court accepted that his sentence was also manifestly inadequate to a significant degree. However, because the Crown had framed its appeal primarily to preserve parity with the wife rather than independently asserting manifest inadequacy, the Court declined to intervene. It is settled law that the Court of Criminal Appeal will not intervene in a sentence merely to achieve parity between co-offenders.

Orders Made

  • Knight appeal: Crown appeal allowed; sentence imposed in the District Court quashed; in lieu, a term of imprisonment comprising a non-parole period of 10 years and a balance of term of 4 years and 4 months, dating from 29 September 2005, with the non-parole period expiring 28 September 2015.
  • Biuvanua appeal: Crown appeal dismissed.

Key Takeaways

  • The standard non-parole period operates as a legislative benchmark or guidepost in sentencing, not a mandatory minimum. Under the framework confirmed in R v Way, a sentencing judge must consciously engage with it and provide sound reasons for any significant departure.
  • Where a sentencing judge expressly finds that offending is "at least mid range," the resulting sentence must be consistent with that finding. An inconsistency between the stated assessment of objective seriousness and the sentence imposed may render the sentence manifestly inadequate.
  • A Crown appeal must independently assert manifest inadequacy in the sentence under challenge. The Court of Criminal Appeal confirmed it will not intervene in a sentence solely to restore parity between co-offenders.
  • In dismissing the appeal against the husband's sentence, the Court noted that it considered the sentence manifestly inadequate to a significant degree, but was constrained by the basis on which the Crown had argued the appeal.
  • The double jeopardy principle, which applies when an offender is resentenced following a successful Crown appeal, operates to reduce the sentence to the lower end of the range that would otherwise have been appropriate at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 22, 22A, 23, 54B(2)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Pearce (1998) 194 CLR 610
- R v MD, BM, NA & JT (2005) 156 A Crim R 372
- R v BSW [2007] NSWCCA 59
- Le Huynh v R [2006] NSWCCA 77
- R v Saba [2006] NSWCCA 214
- Daniel Robert Vos v R [2006] NSWCCA 234
- Reaburn v R [2007] NSWCCA 60
- MLP v R [2006] NSWCCA 271
- Lovell v R
- Dominey v R [2006] NSWCCA 222
- R v Mills (2005) 154 A Crim R 230
- R v Witchard [2007] NSWCCA 167
- R v Zegura [2006] NSWCCA 230
- R v AJP (2004) 150 A Crim R 575
- R v Moore and Weibe (NSWCCA, 11 August 1992, unreported)