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13
Court of Criminal Appeal 5 March 2007

R v J.R.D.

[2007] NSWCCA 55

DrugsFraud & dishonestyTheft & property
CRIMINAL LAW SENTENCING CROWN APPEAL RESPONDENT CHARGED WITH THREE OFFENCES IMPOSES SUSPENDED SENTENCE ON EACH WHETHER MANIFESTLY INADEQUATE

Citation: R v J.R.D. [2007] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 5 March 2007
Judge(s): McClellan CJ at CL, Bell J, Howie J

Background

The respondent was sentenced in the District Court on three separate offences: supplying a commercial quantity of a prohibited drug (MDMA, exceeding the commercial threshold of 125 grams), receiving stolen goods (with two further receiving matters taken into account on a Form 1), and obtaining credit by fraud. The offences were uncovered largely through lawfully intercepted telephone calls and a listening device.

The sentencing judge imposed what appeared on their face to be substantial sentences. The supply offence attracted an 18-month non-parole period with a 6-month balance of term, the receiving offence attracted the same, and the fraud offence attracted a 12-month fixed term. However, each sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, meaning the respondent was released into the community on bonds.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing that the suspended sentences were manifestly inadequate and that the sentencing judge's overall approach was erroneous, including an excessive discount for assistance to authorities.

  • Whether the three suspended sentences were manifestly inadequate, either individually or in combination
  • Whether the sentencing judge's approach to structuring sentences across three distinct offences was erroneous
  • Whether the discount afforded to the respondent for assistance to authorities was excessive
  • How parity with a co-offender's (also arguably inadequate) sentence should affect resentencing on a Crown appeal
  • Whether the principle of double jeopardy applied to moderate any increased sentence on Crown appeal

Decision

The Court of Criminal Appeal, with Howie J delivering the principal judgment (McClellan CJ at CL and Bell J agreeing), upheld the Crown appeal. The Court found that imposing suspended sentences across all three offences was manifestly inadequate, particularly in respect of the supply charge, which carried a standard non-parole period of 10 years and a maximum penalty of 20 years imprisonment.

Howie J accepted that the respondent had subjective features in his favour, including a guilty plea, assistance provided to authorities (both past and prospective), his age, health, and family circumstances. However, those factors did not come close to justifying sentences that involved no actual time in custody across offences of this seriousness and volume.

On the question of the discount for assistance, the Court found it was excessive. The overall discount allowed for plea and assistance was recalculated and, in resentencing, Howie J noted that the combined discount amounted to approximately 55 per cent, of which 15 per cent reflected the respondent's undertaking to provide future assistance.

Regarding parity, the Court acknowledged that the respondent's co-offender had received a sentence that was at least arguably also inadequate, but that sentence had not been the subject of a Crown appeal. Howie J held that, as a matter of discretion, the Court was constrained not to exceed what the co-offender received, and that the double jeopardy principle further moderated the resentencing outcome. Accordingly, the new sentences were structured consecutively but were significantly below what the standard non-parole period would otherwise suggest.

Orders Made

  • The sentences imposed by Judge Donovan were quashed.
  • For the fraud offence (s 178C): fixed term of 2.5 months, commencing 5 January 2007 and expiring 19 March 2007.
  • For the receiving offence (including Form 1 matters): fixed term of 10 months, commencing 20 March 2007 and expiring 19 January 2008.
  • For the supply offence: non-parole period of 16 months commencing 20 January 2008 and expiring 19 May 2009, with a balance of term of 8 months expiring 19 January 2010.

Key Takeaways

  • Suspending all sentences across three serious offences, including a commercial drug supply charge carrying a 10-year standard non-parole period, was found to be manifestly inadequate even where significant subjective factors existed in the offender's favour.
  • A discount for assistance to authorities must be calibrated carefully; where the combined discount for plea and assistance approaches 55 per cent, a sentencing court should scrutinise whether that reduction is proportionate and justified.
  • Parity with a co-offender's inadequate sentence can still operate as a constraint on resentencing in a Crown appeal, particularly where the co-offender's sentence was not itself appealed by the Crown.
  • The double jeopardy principle applies on Crown appeals and moderates the severity of any increased sentence the appellate court would otherwise impose.
  • Where multiple consecutive sentences are structured on resentencing, fixed terms (equivalent to what would otherwise be non-parole periods) may be appropriate for lesser offences to avoid unnecessary technical complications, with totality adjusted accordingly.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(2)(d), 21A(3)(j), 23(3), 67, 99(c)(ii)
- Crimes Act 1900 (NSW), s 188 (receiving)

Cases:
- R v BCC [2006] NSWCCA 130
- R v Wall [2002] NSWCCA 42
- Dinsdale v The Queen (2000) 202 CLR 321
- R v MAK and MSK [2006] NSWCCA 381
- McNaughton v R [2006] NSWCCA 242
- R v Zamagias [2002] NSWCCA 17
- R v Perez [2004] NSWCCA 218
- SZ v R [2007] NSWCCA 19
- York v The Queen (2005) 79 ALJR 1919
- Johnson v The Queen (2004) 78 ALJR 616