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Court of Criminal Appeal 3 December 2008

Edwards v R

[2008] NSWCCA 281

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS APPLICATIONS TO REDUCE SENTENCE WHEN REFUSED

Citation: Edwards v R [2008] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 3 December 2008
Judge(s): McClellan CJ at CL, Hall J, Harrison J

Background

The applicant pleaded guilty in the District Court to four counts of drug supply under the Drug Misuse and Trafficking Act 1985. The offending spanned more than three months in 2005 and involved large-scale supply of MDMA and amphetamine, with a combined street value exceeding $600,000. The applicant conducted the operation using coded telephone conversations and stored drugs at both his home and a leased factory unit.

The most serious count involved supplying 1,680 grams of MDMA, an amount exceeding the large commercial quantity threshold. Three further drug charges were taken into account at sentencing on a Form 1 (a procedure that allows additional charges to be considered without separate sentencing, reducing their prominence in the overall exercise). English DCJ sentenced the applicant to a non-parole period of 10 years with a total term of 17 years on the principal count, with concurrent fixed terms of 7 years and 6 months on the remaining counts, all subsumed within the head sentence.

The applicant sought leave to appeal against the sentence, arguing it was excessive.

  • Whether the sentencing judge erred in the weight attributed to the Form 1 matters when calculating the total sentence
  • Whether the sentencing judge erred by failing to impose distinct, cumulative terms for counts 2, 3 and 4, rather than subsuming all counts within a single sentence
  • Whether, if error was established, the Court of Criminal Appeal should intervene to reduce the sentence

Decision

The Court found that the sentencing judge had made an error in relation to the Form 1 matters. Relying on the principles stated in Attorney-General's Application No 1 of 2002, the Court noted that inclusion on a Form 1 gives those offences significantly lower salience in the sentencing process. The additional drug matters on the Form 1 were of some seriousness, and attributing what appeared to be a 2-year uplift to them was outside the appropriate range for Form 1 treatment.

A further error was identified in the structure of the sentence overall. The Court held that the serious and multiple counts to which the applicant pleaded guilty should not have been dealt with by imposing a single term. Some portion of the sentence should have been expressly referable to counts 2, 3 and 4. Had that been done correctly, the total term would almost certainly have exceeded 17 years.

Despite identifying these errors, the Court declined to intervene. Under section 6(3) of the Criminal Appeal Act 1912, the Court may only reduce a sentence if a less severe sentence is warranted in law. Given the gravity of the offending, the standard non-parole periods applicable (15 years for count 1, 10 years each for counts 2, 3 and 4), and the fact that a correctly structured sentence would likely have produced a longer total term, the existing sentence was not shown to be excessive. The two errors in effect cancelled each other out in practical terms, leaving no basis for a reduction.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that charges included on a Form 1 carry significantly reduced weight in sentencing; an uplift reflecting their full seriousness as standalone offences is inconsistent with the Form 1 procedure.
  • Where an offender is sentenced on multiple serious counts, the sentencing court should impose distinct terms that expressly mark out the individual offending, rather than subsuming all counts within a single sentence.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle that it will not intervene simply because an error occurred: intervention requires the Court to be satisfied that a less severe sentence is actually warranted in law under section 6(3) of the Criminal Appeal Act 1912.
  • Errors that work against one another can result in a sentence falling within an acceptable range overall, even where individual aspects of the sentencing exercise were flawed.
  • A guilty plea reduces the significance of standard non-parole periods, but does not displace them as a relevant reference point in large-scale commercial drug supply cases.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267