Citation: Reed v Regina [2007] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 22 January 2007
Judge(s): Adams J, Howie J, Price J
Background
The appellant pleaded guilty in the District Court at Gosford to three counts of ongoing supply of amphetamine for financial reward, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment. The appellant had a history of amphetamine abuse from a young age and had spent 91 days in pre-sentence custody and approximately six months in residential rehabilitation at Guthrie House, a supervised facility for women.
At an earlier appearance in March 2006, the sentencing judge indicated he intended to backdate any sentence by six months to account for the pre-sentence custody and quasi-custody at Guthrie House. When he returned to impose sentence in June 2006, however, he determined the sentence would be served by way of periodic detention and imposed a full non-parole period of 12 months without reducing it to reflect that earlier credit.
The appellant sought leave to appeal against the severity of the sentence, arguing that the judge's failure to give effect to the six months of pre-sentence and quasi-custody resulted in a longer sentence than he had originally intended.
Legal Issues
- Whether the sentencing judge erred by failing to reduce the non-parole period to reflect the pre-sentence custody (91 days) and quasi-custody (six months in residential rehabilitation) when switching from a prospective full-time custody sentence to one to be served by periodic detention.
- Whether the sentence gave rise to a justifiable sense of grievance when compared with the sentence imposed on a co-offender who had pleaded guilty to the less serious offence of supply under s 25 of the same Act.
Decision
The Court of Criminal Appeal identified error in the sentencing judge's approach. The three-stage process for imposing a term of periodic detention, as set out in Douar v R, requires the sentencing court first to determine the appropriate period of imprisonment and then to consider whether an alternative to full-time custody is available. On that approach, the determination of the base term and the decision to order periodic detention are distinct steps. The credit for pre-sentence custody and quasi-custody must be applied at the first stage, before the question of mode of detention is considered.
The Court found the judge had determined a two-year term (12 months non-parole, 12 months additional) as the appropriate period of full-time imprisonment, with a clear intention to reduce it by six months to account for the pre-sentence and quasi-custody. When he then ordered periodic detention instead of full-time custody, he did not apply that reduction, resulting in the appellant serving a longer non-parole period than the judge had originally intended.
On the parity ground, the Court rejected the argument that the appellant's sentence was unjust when compared to her co-offender's. The appellant faced a more serious charge under s 25A (ongoing supply) rather than s 25 (supply), played a more substantial role in the offending, and received a sentence that was already considerably more lenient than full-time custody. No justifiable sense of grievance was established.
Having identified the error in the non-parole period, the Court exercised its power under s 6(3) of the Criminal Appeal Act 1912 to re-sentence the appellant by reducing the non-parole period from 12 months to six months, to give proper effect to the credit that had always been intended.
Orders Made
- Leave to appeal granted.
- The non-parole period imposed by O'Connor DCJ was quashed.
- The appellant was sentenced to imprisonment for a non-parole period of six months, dating from 28 June 2006 and expiring 27 December 2006, with a balance of term of 12 months expiring 27 December 2007, to be served by way of periodic detention.
Key Takeaways
- Pre-sentence custody and quasi-custody (such as time in residential rehabilitation under a structured, supervised regime) must be factored into the base term of imprisonment before a court decides whether to order periodic detention, not treated as a consideration subsumed by the leniency of that mode of detention.
- The Court of Criminal Appeal confirmed the three-stage Douar v R framework: consider alternatives to imprisonment, determine the appropriate period of imprisonment, and then consider whether an alternative to full-time custody is warranted. These stages are analytically distinct.
- A court's expressed intention at an earlier hearing to backdate a sentence by a specified period will be taken into account in identifying error when the final sentence departs from that stated approach without explanation.
- Under s 25A of the Drug Misuse and Trafficking Act 1985, ongoing supply is a materially more serious offence than supply under s 25, a distinction that bears directly on parity arguments between co-offenders charged under different provisions.
- Parity principles require the appellant to demonstrate that a reasonable person, looking at all circumstances, would regard the differential in sentences as giving rise to a justifiable sense of grievance. A more serious charge and a more substantial role in the offending can defeat such an argument even where sentences appear to differ significantly.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 70
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Douar v R (2005) 159 A Crim R 154
- Lowe v The Queen (1985) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v CBK [2002] NSWCCA 457
- R v Ilbay [2000] NSWCCA 251
- R v Khaled [2001] NSWCCA 160
- R v Kollas & Mitchell [2002] NSWCCA 491
- R v Stephen [2003] NSWCCA 377
- R v Wegener [1999] NSWCCA 405
- R v Mouzomenos [2005] NSWCCA 203