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94
Court of Criminal Appeal 21 April 2009

REGINA v XX

[2009] NSWCCA 115

Also reported as (2009) 195 A Crim R 38
DrugsFirearms & weapons
CRIMINAL LAW SENTENCING CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCES MANIFESTLY INADEQUATE WHETHER ERRORS OF CALCULATION SENTENCE SET ASIDE AND RE

Citation: REGINA v XX [2009] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 21 April 2009
Judges: Tobias JA, Kirby J, Hall J

Background

The respondent pleaded guilty at the Central Local Court in October 2007 to two counts of supplying large commercial quantities of prohibited drugs (methylamphetamine and MDMA, commonly known as "ice" and "ecstasy"), and two counts of possessing prohibited firearms. He was also subject to a Form 1 (a list of additional offences taken into account on sentence without separate conviction) containing eight further matters, including weapons possession, cocaine supply, and recklessly dealing with $159,600 in proceeds of crime.

The quantities involved were substantial. The methylamphetamine charge concerned 3.165 kilograms, more than three times the large commercial quantity threshold. The MDMA charge involved 7.4945 kilograms, approximately 15 times the large commercial quantity. Both drug supply offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The District Court sentenced the respondent on 27 June 2008, imposing wholly concurrent terms on all four counts, each commencing on 14 February 2007 (the date of arrest). The effective sentence was the five-year non-parole period imposed for Count 1, with no additional punishment flowing from the remaining three counts or the Form 1 matters. The Crown appealed, arguing the sentences were manifestly inadequate and that the sentencing judge had erred in failing to partially accumulate the sentences.

  • Whether the sentences imposed were manifestly inadequate having regard to the objective seriousness of the offending
  • Whether the District Court erred in imposing wholly concurrent sentences without any accumulation across the four counts
  • Whether the District Court correctly applied the totality principle and the principle that multiple offences forming one criminal enterprise may nonetheless warrant partial accumulation
  • Whether there were errors in the calculation of the individual sentences

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding that the District Court's approach of imposing wholly concurrent sentences was erroneous. While the drug offences arose on the same date and could be characterised as part of one criminal enterprise, that characterisation does not automatically require complete concurrency. The court confirmed that partial accumulation remains available and appropriate where separate offences, even if connected, have distinct criminality that warrants additional punishment.

Hall J (with whom Tobias JA and Kirby J agreed) found that the sentence for Count 2, which included the substantial Form 1 matters, was manifestly inadequate when treated as wholly concurrent with Count 1. The large quantity of MDMA involved, combined with the weight of the Form 1 offences, required a meaningfully greater sentence than the identical term imposed for Count 1. A 60 percent discount for the early guilty pleas was applied in re-sentencing.

The firearms offences were re-sentenced with partial accumulation to reflect their independent seriousness, though they remained substantially concurrent with the drug sentences. Count 4 (the Russian Nagant revolver) attracted three months of accumulation onto the commencement of the drug sentences.

The individual sentences for Counts 1 and 3 were not increased, but the commencement dates were staggered to achieve partial accumulation. The total effective sentence increased significantly from the original, extending the earliest parole eligibility date from February 2012 to June 2014.

Orders Made

  • The appeal was upheld
  • Sentences imposed by the District Court on Counts 1, 2, 3, and 4 were set aside
  • The respondent was re-sentenced as follows:
  • Count 4: Non-parole period of 1 year and 8 months commencing 14 February 2007, expiring 13 October 2008; balance of term of 9 months expiring 13 July 2009
  • Count 1: Non-parole period of 5 years commencing 14 May 2007, expiring 13 May 2012; balance of term of 2 years expiring 13 May 2014
  • Count 2 (including Form 1): Non-parole period of 6 years and 7 months commencing 14 November 2007, expiring 13 June 2014; balance of term of 2 years and 2 months expiring 13 August 2016
  • Count 3: Non-parole period of 1 year and 6 months commencing 14 February 2007, expiring 13 August 2008; balance of term of 6 months expiring 13 February 2009
  • Total effective sentence: non-parole period of 7 years and 4 months from 14 February 2007 to 13 June 2014; balance of term of 2 years and 2 months to 13 August 2016
  • Earliest parole eligibility: 13 June 2014

Key Takeaways

  • Wholly concurrent sentences across multiple serious offences are not automatically justified simply because those offences arose from a single criminal enterprise or on the same date; partial accumulation may still be required to reflect distinct criminality in each offence.
  • Where a sentencing court imposes identical non-parole periods for two counts of supplying large commercial quantities of different prohibited drugs, with one count carrying a substantial Form 1, the failure to provide any additional punishment for the heavier count may render the sentence manifestly inadequate.
  • The Court of Criminal Appeal confirmed that the totality principle operates to temper accumulated sentences, not to eliminate accumulation altogether where independent serious offending warrants separate punishment.
  • A significant early guilty plea discount (here 60 percent) does not preclude the court from finding a sentence manifestly inadequate; the discount applies within the framework of an appropriately structured overall sentence.
  • Fixed terms imposed for serious firearms offences carrying a standard non-parole period, rather than sentences structured as non-parole period plus balance of term, constituted a further sentencing error requiring correction on re-sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)

Cases:
- Cahyadi v Regina (2007) 168 A Crim R 41
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Elyard v Regina [2006] NSWCCA 43
- Luu v Regina [2008] NSWCCA 285
- Nguyen v Regina [2007] NSWCCA 14
- Regina v Cicekdag (2004) 150 A Crim R 299
- Regina v Cowan [2008] NSWCCA 124
- Regina v Dunn [2004] NSWCCA 41
- Regina v KM [2004] NSWCCA 65
- Regina v MMK [2006] NSWCCA 272
- Regina v Wall [2002] NSWCCA 42
- Regina v Way (2004) 60 NSWLR 168
- Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55
- Regina v Wilson [2005] NSWCCA 219
- Regina v Yildiz [2006] NSWCCA 97
- SGJ v Regina; K v Regina [2008] NSWCCA 258
- Vaovasa v Regina [2007] NSWCCA 253