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23
Court of Criminal Appeal 24 September 2009

Mack v R; Mack v R

[2009] NSWCCA 216

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY STANDARD NON PAROLE PERIOD OBJECTIVE SERIOUSNESS OF OFFENCE

Citation: Mack v R; Mack v R [2009] NSWCCA 216
Court: New South Wales Court of Criminal Appeal
Date: 24 September 2009
Judge(s): McClellan CJ at CL; RA Hulme J; Davies J

Background

Two co-offenders, a husband and wife (referred to here as the male appellant and the female appellant), each pleaded guilty in the District Court to a combination of drug and firearms offences. The offences arose from a police search in March 2007 that uncovered a cannabis cultivation operation and a number of unauthorised firearms held in circumstances of aggravation. Both appellants had been sentenced by Acting Judge Woods QC in November 2008.

The male appellant was sentenced across three counts, including commercial cannabis cultivation, supply of cannabis oil, and unauthorised possession of seven firearms. Four further offences were taken into account on a Form 1 document. The female appellant was sentenced on two counts, including the same cultivation offence and unauthorised possession of four of the same firearms, with one further supply offence on her Form 1.

Both appellants sought leave to appeal against the severity of their sentences in the Court of Criminal Appeal, with particular focus on the commencement dates of accumulated sentences and the application of the standard non-parole period regime.

  • Whether the sentences imposed on the drug supply and firearms counts were manifestly excessive
  • Whether the sentencing judge correctly assessed the objective seriousness of the firearms offences for the purpose of applying the standard non-parole period provisions under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge failed to give proper effect to the totality principle when fixing the commencement dates for accumulated sentences
  • Whether the female appellant's firearms offence warranted a custodial sentence at all

Decision

Davies J (with whom McClellan CJ at CL and Hulme J agreed) upheld both appeals, finding that the primary errors lay in how the sentences had been accumulated rather than in the individual sentence lengths themselves. For the male appellant, the terms imposed on counts 2 and 3 were confirmed, but the commencement dates were adjusted to reduce the degree of accumulation. The court found that the original accumulation of sentences produced a total effective sentence that failed to reflect the totality principle properly.

On the standard non-parole period question, the court considered the objective seriousness of the firearms offences against the statutory benchmark. The standard non-parole period for unauthorised possession of firearms in circumstances of aggravation under section 51D(2) of the Firearms Act 1996 is 10 years. The court's analysis informed the view that the individual sentence lengths were not in themselves excessive, but the way sentences were stacked together required correction.

For the female appellant, the court quashed the sentence on the firearms count and substituted a shorter term of 12 months with a 9-month non-parole period. The court accepted that, while a custodial sentence remained appropriate given the seriousness of the offence and the need for denunciation and general deterrence, the original sentence was too severe. The accumulation was then adjusted to produce a total effective sentence of 3 years and 6 months with a 2-year non-parole period.

The court also noted that the sentencing judge had proceeded on an incorrect maximum penalty for the cannabis cultivation count in both matters, a mistake induced by an error in the Crown's submissions. However, the court found this error did not affect the outcome of the appeals.

Orders Made

Wayne Mack:
- Leave to appeal granted; appeal upheld
- Sentence for count 1 confirmed
- Count 2 sentence confirmed in length but commencement date moved to 26 March 2007; non-parole period expires 25 March 2009
- Count 3 sentence confirmed in length but commencement date moved to 25 September 2008; eligible for parole 25 September 2011; total term expires 25 September 2014

Annette Mack:
- Leave to appeal granted; appeal upheld
- Count 2 sentence quashed and replaced with 12 months imprisonment (9-month non-parole period), commencing 18 November 2008; non-parole period expires 17 August 2009
- Count 1 sentence confirmed in length; commencement date moved to 18 May 2009; parole eligible 17 November 2010; total term expires 17 May 2012

Key Takeaways

  • The totality principle requires a sentencing court to look beyond individual sentence terms and ensure that the cumulative effect of accumulated sentences is not disproportionate to the overall criminality involved; errors in fixing commencement dates can breach this principle even where individual sentences are otherwise appropriate.
  • A mistaken maximum penalty used at first instance does not automatically vitiate a sentence on appeal if the error did not affect the outcome, as the Court of Criminal Appeal found here.
  • Under section 51D(2) of the Firearms Act 1996, the standard non-parole period of 10 years represents the benchmark for offences of midrange objective seriousness, and the sentencing court must assess where the particular offence sits relative to that benchmark.
  • Confirming individual sentence lengths while adjusting commencement dates is a recognised mechanism for the Court of Criminal Appeal to correct totality errors without disturbing the sentence structure more broadly.
  • Even where an offence is not placed at the highest end of objective seriousness, full-time custody may still be required where denunciation and general deterrence are significant sentencing considerations, as the court confirmed for the female appellant's firearms offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25, 32, 33
- Firearms Act 1996 (NSW), s 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Cahyadi v Regina [2007] NSWCCA 1
- Graham v Regina [2009] NSWCCA 212
- Johnson v The Queen (2004) 78 ALJR 616
- Markarian v R (2005) 228 CLR 357
- Mill v R (1988) 166 CLR 59
- MLP v R [2006] NSWCCA 271, 164 A Crim R 93
- R v AJP [2004] NSWCCA 434, 150 A Crim R 575
- R v MMK [2006] NSWCCA 272
- R v Oliver (1982) 7 A Crim R 174
- R v Pearce (1998) 194 CLR 610
- R v Way (2004) 60 NSWLR 168