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Court of Criminal Appeal 16 March 2007

T v R

[2007] NSWCCA 62

DrugsPublic order & justice offences
SENTENCING OFFENCE SUBJECT TO STANDARD NON PAROLE PERIOD

Citation: T v R [2007] NSWCCA 62
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2007
Judges: Sully J, Bell J, Hoeben J

Background

The applicant pleaded guilty in the District Court to two offences: doing an act to pervert the course of justice, and supplying a commercial quantity of methylamphetamine (351.14 grams) contrary to the Drug Misuse and Trafficking Act 1985. The drug supply involved five separate transactions with an undercover police officer over approximately seven weeks in late 2004, with an estimated street value of around $70,000.

The applicant was sentenced by Knight DCJ to an effective sentence of six years' imprisonment with a non-parole period of four years for the drug supply offence. His Honour applied a 25 per cent discount for the early guilty plea and a substantial additional discount for the applicant's cooperation with authorities, including identifying his supplier and undertaking to give evidence against that person.

The applicant sought leave to appeal, arguing the sentence was manifestly excessive. He pointed to his personal circumstances, including a difficult upbringing, borderline intellectual functioning, family responsibilities, drug rehabilitation efforts, and the particularly harsh conditions he faced in protective custody as a result of his cooperation with police.

  • Whether the sentencing judge erroneously used the 10-year standard non-parole period (SNPP) as a starting point, contrary to the principles in R v Way
  • Whether the sentencing judge erred by failing to treat his finding of special circumstances as a factor in reducing the non-parole period

Decision

On the first ground, Bell J accepted that the judge's comments during the hearing, read in isolation, might suggest an incorrect approach. However, her Honour examined the sentence remarks as a whole and was satisfied the judge understood and applied the correct methodology. Rather than treating the SNPP as an automatic starting point, the judge assessed the objective seriousness of the offending and identified it as at or slightly above the mid-range before applying the relevant discounts.

On the second ground, Bell J noted that finding special circumstances does not automatically require a reduction in the non-parole period. Special circumstances justify departing from the standard ratio between the non-parole period and the balance of term. In this case, the judge was entitled to reduce the balance of term rather than the non-parole period, and Bell J was satisfied that this was the approach taken.

Bell J also rejected the submission that comparable cases warranted a lesser sentence. The applicant's case was distinguished from R v Barkho on multiple grounds, including his extensive criminal history, the aggravated nature of the offending, and the fact that Division 1A of the Crimes (Sentencing Procedure) Act 1999 applied. Bell J concluded that no lesser sentence than the one imposed was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge dealing with an offence subject to a standard non-parole period does not err merely because comments made during the hearing could be read as treating the SNPP as a starting point, provided the sentence remarks as a whole demonstrate the correct approach was applied.
  • Under the principles in R v Way, the SNPP serves as a guidepost for offending in the middle of the range, not an automatic starting point to be mechanically applied in every case.
  • A finding of special circumstances does not compel a reduction in the non-parole period itself. The sentencing court may satisfy the special circumstances finding by adjusting the balance of term, leaving the non-parole period intact.
  • In dismissing the appeal, the Court of Criminal Appeal declined to treat R v Barkho as a directly comparable case, emphasising that differences in criminal history, the scope of offending, and the legislative framework applicable at the time of sentence all bear on the utility of sentencing comparisons.
  • Protective custody conditions and cooperation with authorities are significant mitigating factors, but their weight is assessed alongside the full picture of the offending and the offender's history.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A; s 21A(2)(d)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Shi [2004] NSWCCA 135
- R v Barkho [2005] NSWCCA 211
- SZ v R [2007] NSWCCA 19
- R v Bloomfield (1998) 44 NSWLR 734
- R v P [2004] NSWCCA 218
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704