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13
Court of Criminal Appeal 9 December 2008

R v AD

[2008] NSWCCA 289

Also reported as (2008) 191 A Crim R 409
Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL MANIFEST INADEQUACY OF SENTENCE OFFENCES COMMITTED WHILE ON PAROLE APPEAL ALLOWED

Citation: R v AD [2008] NSWCCA 289
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2008
Judge(s): Beazley JA, Hislop J, Harrison J

Background

The respondent pleaded guilty in the Sydney District Court to three serious drug offences: manufacturing methylamphetamine, conspiring to manufacture a large commercial quantity of MDMA (ecstasy), and deemed supply of a commercial quantity of LSD. The offences were committed between May 2005 and August 2006. At the time, the respondent was either on day release from prison or on parole for earlier convictions involving drug supply and unauthorised possession of firearms.

The respondent played an organisational role in a four-person criminal enterprise. He arranged premises, sourced chemicals, recruited a co-offender to act as the manufacturer, and co-ordinated the overall operation. The conspiracy aimed to produce MDMA substantially exceeding one kilogram.

At sentencing in May 2008, Toner DCJ imposed sentences that, after backdating and concurrent structuring, resulted in an effective overall term of 11 years and 6 months, with the respondent required to serve only approximately 1 year and 9 months referable solely to the present offences. The Crown appealed, arguing the sentences were manifestly inadequate.

  • Whether the overall sentencing structure, including the extensive backdating of sentence commencement dates, failed to reflect the number and objective seriousness of the offences
  • Whether running the sentences largely concurrently was appropriate given the distinct criminality involved in each count
  • Whether the sentencing judge erred by double counting mitigating factors, specifically the early guilty pleas and the respondent's provision of assistance to authorities
  • Whether insufficient weight was given to the aggravating circumstance that the offences were committed while the respondent was on parole
  • Whether the effective sentences were manifestly inadequate so as to warrant intervention on Crown appeal

Decision

The Court of Criminal Appeal (Harrison J, with Beazley JA and Hislop J agreeing) allowed the appeal. The Court found that the sentences were so low as to fall definitively outside the appropriate range, warranting re-sentencing rather than merely minor adjustment.

The Court identified a problem with the backdating of sentences: by commencing the sentences well before the sentencing date, the judge produced a result where only about 1 year and 9 months of imprisonment was solely attributable to the present, serious offences. The Court found this did not adequately reflect the gravity of the conduct, particularly given the applicable maximum penalties, which included life imprisonment for the MDMA conspiracy.

The Court also found that the sentencing judge had double counted certain mitigating factors, most notably the early guilty pleas and the provision of assistance to authorities. These matters appeared to have been given weight multiple times within the sentencing exercise, which distorted the outcome in the respondent's favour beyond what was warranted.

The failure to give sufficient weight to the fact that all offences were committed while the respondent was on parole was a further error. The Court noted that this aggravating circumstance called for greater emphasis on personal deterrence and community protection than the original sentences reflected.

Orders Made

  • Appeal allowed.
  • Sentences on Counts 1, 2 and 3 quashed and replaced as follows:
  • Count 1: Fixed term of 4 years and 6 months, from 8 February 2008 to 7 August 2012.
  • Count 2: Non-parole period of 6 years from 8 February 2009 to 7 February 2015, with a balance of term of 3 years and 6 months from 8 February 2015 to 7 August 2018.
  • Count 3: Fixed term of 2 years and 6 months from 8 November 2012 to 7 May 2015.

Key Takeaways

  • Where a respondent commits serious drug offences while on parole, the sentencing court must give meaningful weight to personal deterrence and protection of the community, and a failure to do so may render a sentence manifestly inadequate.
  • Double counting mitigating factors such as early guilty pleas and assistance to authorities constitutes a sentencing error that can enliven Crown appeal grounds.
  • The Court of Criminal Appeal confirmed that extensive backdating of sentence commencement dates may undermine the proportionality of the overall sentence by leaving the offender to serve only a nominal additional period for serious fresh offending.
  • In allowing a Crown appeal, the Court applied the established principle that appellate courts should not lightly interfere with sentences, but will do so where the sentence falls definitively outside the appropriate range rather than simply sitting at the lower end.
  • Structuring multiple serious offences to run largely concurrently, without adequate accumulation, can itself reflect a failure to account for the distinct and cumulative criminality involved in each count.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Wall [2002] NSWCCA 42
- R v Ceissman [2004] NSWCCA 466
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v MAK, R v MSK [2006] NSWCCA 381; (2008) 167 A Crim R 159
- Lu v Regina [2008] NSWCCA 261
- R v Richards (1981) 2 NSWLR 464
- R v Tran [1999] NSWCCA 109
- R v Moffitt (1990) 20 NSWLR 114
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
- Callaghan v R [2006] NSWCCA 58
- Kauwenberghs v R (Cth) [2008] NSWCCA 98
- SZ v R [2007] NSWCCA 19; (2007) A Crim R 249
- S v R [2008] NSWCCA 186
- R v Z [2006] NSWCCA 342; 167 A Crim R 436
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v WAQA [2005] NSWCCA 33; (2005) 156 A Crim R 454
- R v Misiepo [2005] NSWCCA 405
- R v Porteous [2005] NSWCCA 115
- R v Smith & Jones [2001] NSWCCA 279
- R v Wheeler [2000] NSWCCA 34
- R v Readman (1990) 47 A Crim R 181