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Court of Criminal Appeal 19 December 2008

LAPA v REGINA

[2008] NSWCCA 331

Also reported as (2008) 192 A Crim R 305
DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST DRUG COURT SENTENCES BREAK, ENTER AND STEAL SUPPLY HEROIN PLEAS OF GUILTY

Citation: LAPA v REGINA [2008] NSWCCA 331
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2008
Judge(s): McClellan CJ at CL, Hulme J, Hidden J

Background

The appellant had pleaded guilty in the Drug Court to break, enter and steal (committed at a Toongabbie chemist shop in May 2004) and, separately, to supplying heroin (arising from possession of 5.14 grams found on his person in November 2006, in circumstances indicating a commercial operation in the Parramatta area). The supply offence was committed while the appellant was on the conditional liberty of the Drug Court treatment program, which had by then been terminated following further offending.

The Drug Court initially suspended the sentence for the break, enter and steal to allow the appellant to enter the treatment program. After the program was terminated, Judge Barnett confirmed the earlier sentence for that offence and imposed a fresh five-year sentence for the heroin supply, resulting in an overall sentence of just over five years and two months with an effective non-parole period of approximately three years and eight months.

The appellant appealed to the Court of Criminal Appeal against both sentences, arguing they were manifestly excessive and that the sentencing judge had fallen into jurisdictional error.

  • Whether the sentencing judge exceeded jurisdiction by working from a starting point above the two-year maximum applicable to the break, enter and steal offence dealt with summarily under the Criminal Procedure Act 1986, before applying a discount for the plea of guilty.
  • Whether the sentence for supplying heroin was manifestly excessive, given the quantity involved (5.14 grams) and the utilitarian value of the plea.
  • Whether the overall sentences were manifestly excessive in their totality, having insufficient regard to the appellant's two years in the Drug Court program and his prospects for rehabilitation.
  • Whether Judge Barnett gave adequate weight to special circumstances warranting a greater departure from the statutory ratio between sentence and non-parole period.

Decision

The jurisdictional question for the summary offence: Hidden J, with whom McClellan CJ at CL and Hulme J agreed, rejected the argument that the sentencing judge lacked jurisdiction to use a starting point above the two-year maximum. Relying on R v Doan [2000] NSWCCA 317, the Court confirmed that the two-year limit in the Criminal Procedure Act constrains only the sentence actually passed, not the starting point from which a discount for a guilty plea is applied. There is no requirement that a two-year sentence be reserved for the worst case, and no error arose from Judge Dive working from a notional starting point of two years and eight months before reducing for the plea.

Manifest excess on the drug supply sentence: The Court accepted that the plea of guilty was taken into account as having high utilitarian value, implying a starting point of approximately six and a half years before reduction. The supply offence was not characterised as user-dealing but as part of a planned commercial venture, and it was committed while the appellant was on the conditional liberty of the Drug Court program. Judge Barnett had expressly identified that circumstance as a seriously aggravating feature.

Special circumstances and overall totality: Judge Barnett had made a limited departure from the statutory non-parole period ratio, but only because of the degree of accumulation between the two sentences. He declined to find broader special circumstances, adopting the language from R v Tran [1999] NSWCCA 109 that the appellant had "betrayed the opportunity for rehabilitation." The Court found that Judge Barnett had conducted a careful review of the appellant's background and progress through the program and identified no error in his approach.

The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under the Criminal Procedure Act 1986, the two-year maximum for a Table 1 offence dealt with summarily constrains the sentence actually imposed, not the notional starting point before a plea discount is applied. A sentencing judge may legitimately commence from a figure above that limit before reducing for the utilitarian value of a guilty plea.
  • The Court of Criminal Appeal confirmed the approach in R v Doan [2000] NSWCCA 317: the two-year ceiling for summary disposal carries no corollary that such a sentence must be reserved for a worst case.
  • Committing an offence while on the conditional liberty of the Drug Court program is a seriously aggravating feature that a sentencing judge may treat as weighing heavily against a finding of special circumstances.
  • Where a Drug Court participant has "betrayed the opportunity for rehabilitation" (following R v Tran [1999] NSWCCA 109), that factor can properly justify declining to extend the parole eligibility period beyond the statutory ratio.
  • In dismissing the appeal, the Court found no error in a sentence structure that used significant concurrency between two sentences where one was wholly subsumed within the other, reflecting the totality principle in a Drug Court context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29 (supply of heroin)
- Criminal Appeal Act 1912 (NSW), s 5AF
- Drug Court Act 1998 (NSW), ss 7, 12
- Criminal Procedure Act 1986 (NSW), Chapter 5, ss 267, 27 (former)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 (guilty plea discount principles)
- R v Doan [2000] NSWCCA 317, 50 NSWLR 115 (two-year summary maximum as ceiling on sentence, not starting point)
- R v Tran [1999] NSWCCA 109 (betrayal of rehabilitation opportunity as relevant to special circumstances)