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Court of Criminal Appeal 11 September 2009

Scheers v R

[2009] NSWCCA 224

Drugs
CRIMINAL LAW APPEAL APPEAL OF SENTENCE

Citation: Scheers v R [2009] NSWCCA 224
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2009
Judge(s): McClellan CJ at CL; Howie J; Hoeben J

Background

The applicant pleaded guilty in the District Court to one count of supplying methylamphetamine, relating to 197 transactions involving a total of 113 grams of the drug over approximately five weeks. He also asked the court to take into account eight further matters on a Form 1, including three break, enter and steal offences, a second deemed supply offence involving 51.4 grams of methylamphetamine, possession of prohibited substances, and dealing in suspected proceeds of crime.

The applicant was sentenced by Sides DCJ to a non-parole period of 4 years 2 months with an additional term of 2 years 4 months. Taking into account partial concurrency with a Local Court sentence and a sentence for breach of a conditional bond, the effective overall sentence was 6 years and 10 months imprisonment with a non-parole period of 4 years and 8 months. The sentencing judge found special circumstances, which reduced the non-parole period below the standard statutory ratio.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge erred in characterising him as having a well-entrenched pattern of disobedience to the law, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by finding that the applicant had a "well-entrenched pattern of disobedience to the law," and whether that finding was used impermissibly to increase the sentence beyond what the offences warranted.
  • Whether the sentence imposed was manifestly excessive, having regard to Judicial Commission statistics for comparable offences and the sentencing judge's own characterisation of the objective seriousness of the offence as falling within the mid-range.

Decision

On the first ground, the Court of Criminal Appeal accepted that a sentencing court cannot use an offender's criminal history to "punish" the offender again for past conduct, consistent with the principle in Veen v The Queen (No 2). However, the Court found that the sentencing judge had not done so. The characterisation of the applicant as having a well-entrenched pattern of disobedience to the law was held to be an accurate and permissible observation: it indicated that the applicant was disentitled to leniency that might otherwise be extended to an offender of good character, and it reflected a reduced prospect of rehabilitation given a history that included breaches of supervisory orders and ongoing drug use.

On the second ground, the Court emphasised that Judicial Commission statistics are a useful guide in identifying the range of sentences imposed for similar offences, but the highest historical sentence is not a ceiling. The fact that the sentencing judge described the principal offence as serious and in the mid-range of objective seriousness did not mean the sentence had to sit at the midpoint of the statistical range. The applicant's commission of the offence while on conditional liberty, the breadth of the Form 1 matters, and his personal history all warranted a sentence above what might otherwise have been imposed for a mid-range offence.

The Court was not persuaded that the sentencing judge had erred or that the sentence was excessive. The 25 percent discount applied for the early guilty plea was also noted. Leave to appeal was granted but the appeal was dismissed by all three judges.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court's reference to an offender's "well-entrenched pattern of disobedience to the law" is not necessarily an error: such a finding can legitimately inform assessments of character and prospects of rehabilitation without constituting impermissible double punishment for past conduct.
  • Under the principle confirmed in Veen v The Queen (No 2), criminal history cannot be used to extend a sentence beyond what the current offences warrant, but it can properly reduce the leniency that would otherwise be available to an offender of prior good character.
  • Judicial Commission statistics assist in identifying the general sentencing range for an offence category but do not fix a maximum: the longest historically recorded sentence does not become the ceiling for future sentencing exercises.
  • A mid-range finding of objective seriousness does not automatically confine the overall sentence to the middle of the statistical range, particularly where an offender's personal circumstances, including conditional liberty at the time of offending, call for a more significant sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Form 1 matters and the full scope of related offending are relevant considerations that can properly elevate a sentence above what the principal count alone might attract.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1), 29
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Crimes Act 1900 (NSW), ss 112(1), 193C(1)

Cases:
- Veen v The Queen (No 2) (1987) 164 CLR 465