Citation: Bowden v Regina [2009] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 27 February 2009
Judge(s): Beazley JA, Kirby J, Hall J
Background
The applicant pleaded guilty in the District Court to two counts of supplying methylamphetamine and one count of ongoing supply of the same drug, contrary to the Drug Misuse and Trafficking Act 1985. The offences arose from a police undercover operation in the Blacktown area, during which a police operative made a series of purchases of methylamphetamine from the applicant at a residential address in Doonside between November and December 2005. A co-offender, Matthew Iddles, was also charged in connection with the same operation.
The District Court sentenced the applicant to an aggregate term of three years and six months imprisonment, with a non-parole period of one year and six months (reduced to account for pre-sentence custody). The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, raising three specific errors in the sentencing judge's approach.
Legal Issues
- Whether the applicant suffered a justifiable sense of grievance by reason of the lack of disparity between her sentence and that of her co-offender, given their significantly different circumstances (the parity ground).
- Whether the sentencing judge erred by treating financial gain as an aggravating factor under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999, when financial gain is an element of the ongoing supply offence under s 25A of the Drug Misuse and Trafficking Act 1985.
- Whether the sentencing judge erred by finding that the offences were aggravated as being part of a planned or organised criminal activity under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, where no planning or organisation was established beyond what is inherent in the offences themselves.
Decision
The Court upheld all three grounds of appeal. On the parity ground, the Court found that the applicant and her co-offender were in significantly different circumstances, and that a sentencing outcome that failed to reflect that difference gave rise to a justifiable sense of grievance on the applicant's part. The co-offender's comparative position was sufficiently distinct to warrant a more favourable sentence for the applicant.
On the financial gain ground, the Court held that the sentencing judge erred by applying s 21A(2)(o) as an aggravating factor to the ongoing supply offence under s 25A. Financial reward is an element of the s 25A offence itself, and it is a well-established principle that a factor already forming part of the definition of an offence cannot be double-counted as a separate aggravating circumstance at sentencing.
On the planning and organisation ground, the Court found that the sentencing judge provided no reasons for concluding that s 21A(2)(n) applied, and that the evidence did not support it. The fact that drug sales were conducted from a premises on multiple occasions was not sufficient to establish planning or organisation beyond what is inherent in the nature of the offences charged. The Court noted that the compounding effect of all three errors warranted intervention and re-sentencing.
Orders Made
- Leave to appeal granted.
- The appeal upheld.
- The sentences imposed on Count 2 (ongoing supply of methylamphetamine) set aside.
- On Count 2, the applicant re-sentenced to a non-parole period of one year commencing 27 February 2008 and expiring 26 February 2009, with a balance of term of one year and six months commencing 27 February 2009 and expiring 26 August 2010.
- An order directing the release of the applicant on parole at the expiry of the non-parole period (26 February 2009), with the applicant to be released to parole forthwith.
Key Takeaways
- A factor that constitutes an element of a statutory offence cannot be applied as a separate aggravating circumstance under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. Applying financial gain as an aggravator to an ongoing supply charge under s 25A, where financial reward is already an element of that offence, amounts to impermissible double-counting.
- Under s 21A(2)(n), finding that an offence was part of planned or organised criminal activity requires evidence of planning or organisation beyond what is inherent in the offence itself. A pattern of repeat sales from a premises does not, without more, satisfy that threshold.
- The parity principle operates where co-offenders in significantly different circumstances receive sentences that do not adequately reflect those differences. Where the gap in circumstances is substantial, an absence of disparity in sentencing outcomes can itself give rise to a justifiable sense of grievance.
- Sentencing judges are required to identify and articulate reasons for applying statutory aggravating factors. The Court of Criminal Appeal found the absence of any stated reasoning in support of the planning and organisation finding to be itself indicative of error.
- Where multiple sentencing errors are established, their compounding effect on the overall sentence may independently justify intervention and re-sentencing, even where individual errors might otherwise appear modest in isolation.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(2)(o), 50(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A, 25A(1)
- Police Powers (Drug Premises) Act 2001 (NSW)
Cases:
- Fahs v Regina [2007] NSWCCA 26
- Frigiani v Regina [2007] NSWCCA 81
- Elyard v Regina [2006] NSWCCA 43
- Lovelock v The Queen (1978) 33 FLR 132
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Johnson [2005] NSWCCA 186
- Regina v Wickham [2004] NSWCCA 193
- Regina v Yildiz [2006] NSWCCA 97