Citation: Stevens v Regina [2008] NSWCCA 294
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2008
Judge(s): McClellan CJ at CL, Hulme J, Hidden J
Background
The applicant pleaded guilty in the District Court to two counts: supplying methylamphetamine (maximum 15 years) and possessing a prohibited firearm without a licence (maximum 14 years, standard non-parole period of three years). He also asked the sentencing judge to take into account five further offences on a Form 1, including a further supply offence, two goods in custody charges, receiving a stolen motor vehicle, and possessing cannabis.
Police had found the applicant's property to contain substantial quantities of methylamphetamine (totalling over 53 grams across multiple occasions), a .22 self-loading rifle, $17,900 cash, a stolen vehicle, and other stolen property. The circumstances pointed to organised drug dealing for profit.
The District Court sentenced the applicant to a total of four years and eight months imprisonment, with sentences running partly cumulatively. The effective non-parole period was three years and nine months, which represented approximately 80 percent of the aggregate sentence. The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had mishandled the Form 1 matters.
Legal Issues
- Whether the sentencing judge gave excessive weight to personal deterrence and retribution when accounting for the Form 1 offences, in a manner inconsistent with the proper use of Form 1 matters
- Whether the partly cumulative structure of the sentences produced an effective non-parole period that was disproportionately high relative to the aggregate sentence, exceeding the 75 percent ratio ordinarily applied under s 44 of the Crimes (Sentencing Procedure) Act 1999
- Whether, taken together, these matters warranted a lesser sentence being imposed
Decision
Form 1 ground: Hidden J (in dissent on the ultimate outcome) found that the sentencing judge had not erred in the weight he gave to the Form 1 matters. The judge added 12 months to the base sentence on account of all those offences taken together, and that increase was within the proper exercise of discretion. The applicable principle, drawn from Attorney-General's Application No 1 of 2002, is that Form 1 offences can only be used to a limited extent to increase sentences on account of personal deterrence and retribution. The Court found that an addition of 12 months was not outside the bounds of that limited use.
Non-parole period ground: Hidden J identified a problem with the way the sentences were structured. Each individual sentence carried a non-parole period of 75 percent of that term, consistent with s 44 of the Crimes (Sentencing Procedure) Act. However, when the sentences ran partly cumulatively, the effective non-parole period across the aggregate came to approximately 80 percent. His Honour considered this was likely unintended and that the accumulation of sentences was itself a reason to adjust the non-parole period on one count, so that the overall proportion returned to 75 percent.
The majority disagreed. McClellan CJ at CL and Hulme J granted leave to appeal but voted to dismiss the appeal. Hulme J accepted that the sentencing judge may have overlooked the proportionality issue produced by accumulation. However, under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must dismiss an appeal unless satisfied that a lesser sentence was warranted. Hulme J was not so satisfied. On the contrary, his Honour considered the overall sentence modest relative to the seriousness of the conduct, the applicant's criminal history, and the fact that he was on a bond at the time of the offending.
The appeal was dismissed by majority, with Hidden J dissenting and proposing a modest reduction to the non-parole period on the first count.
Orders Made
- Leave to appeal granted
- Appeal dismissed (by majority: McClellan CJ at CL and Hulme J)
Key Takeaways
- When sentences are structured to run partly cumulatively, the effective non-parole period across the aggregate may exceed the 75 percent ratio preserved in individual sentences, even where no error is made in setting each sentence individually. The Court acknowledged this is a known risk following R v Attard.
- Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must dismiss a sentence appeal unless positively satisfied that a lesser sentence was warranted. A technical imperfection in sentencing structure does not automatically produce a successful appeal if the overall sentence is otherwise appropriate or lenient.
- Form 1 offences can only be used to a limited degree to increase a sentence on account of personal deterrence and retribution, consistent with the principle in Attorney-General's Application No 1 of 2002. An increase of 12 months to reflect multiple serious Form 1 matters was found not to exceed that limit.
- The Court of Criminal Appeal confirmed that the accumulation of sentences can itself constitute a reason to adjust a non-parole period on one of the component sentences, to maintain a proportionate overall ratio. However, the majority held that this adjustment was not compelled where the sentence overall remained appropriate.
- A starting point of three years and four months (before taking into account Form 1 matters) for a commercial drug supply offence carrying a maximum of 15 years was characterised by Hulme J as "by no means high," particularly where the applicant had not pleaded guilty to that count.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 37
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Markarian v The Queen (2005) 228 CLR 357
- R v Attard [2004] NSWCCA 376
- Schaal (unreported, NSWSC, 8 September 1989)