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Court of Criminal Appeal 5 March 2009

Hosseini v R

[2009] NSWCCA 52

Also reported as 193 A Crim R 444
DrugsFraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL SUMMARY OFFENCE INCLUDED ON INDICTMENT CONVICTION QUASHED CROWN APPEAL PARTICULAR OFFENCE

Citation: Hosseini v R [2009] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 5 March 2009
Judge(s): Hodgson JA, James J, Price J

Background

The appellant pleaded guilty in the District Court to two counts: knowingly taking part in the manufacture of a large commercial quantity of MDMA (3,4-methylenedioxymethylamphetamine, weighing over 1 kilogram) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985, and possessing approximately $30,400 in circumstances giving rise to reasonable grounds to suspect it was proceeds of crime contrary to s 193C(1) of the Crimes Act 1900. He also asked the court to take into account six additional offences on a Form 1 (a procedural document that allows a sentencing court to consider related offences without entering separate convictions), including possession of drug precursors, drug supply offences, and firearms and false instrument offences.

The District Court sentenced him to a non-parole period of 4 years on count 1 (with a balance term of 3 years 6 months), with a consecutive fixed term of 6 months on count 2, producing a total effective sentence of 7 years 6 months with a non-parole period of 4 years 6 months. The trial judge granted a 25 per cent utilitarian discount for the early guilty pleas and found special circumstances justifying a longer-than-usual additional term.

Two appeals were brought before the Court of Criminal Appeal: one by the appellant challenging the conviction on count 2, and one by the Crown challenging the sentence on count 1 as manifestly inadequate.

  • Whether the District Court had jurisdiction to deal with count 2, a summary offence included on the indictment
  • Whether the standard non-parole period under Division 1A of Part 4A of the Crimes (Sentencing Procedure) Act 1999 was properly applied to count 1
  • Whether the trial judge made errors in assessing the objective seriousness of the offence and the appellant's role
  • Whether the utilitarian discount for the guilty plea was excessive
  • Whether the trial judge gave insufficient weight to specific and general deterrence
  • Whether the approach to the Form 1 drug offences was erroneous
  • Whether parity with a co-offender's sentence was a relevant consideration on resentencing

Decision

On the conviction appeal, the Court found that the offence in count 2 (possession of suspected proceeds of crime under s 193C(1)) was a summary offence carrying a maximum of 2 years' imprisonment or 50 penalty units. Under s 6(1)(c) of the Criminal Procedure Act 1986, it was required to be dealt with summarily. The District Court had no jurisdiction to deal with it on indictment, rendering the conviction invalid. Both parties agreed on this point and the Court quashed the conviction and sentence on count 2 accordingly.

On the Crown appeal, the Court identified a number of errors in the District Court's sentencing of count 1. The trial judge had assessed the utilitarian value of the guilty plea at 25 per cent, but the Court found this was excessive given the plea was entered on the first day of the trial rather than at an earlier opportunity. The Court assessed the appropriate utilitarian discount at 15 per cent. The Court also found that the trial judge failed to give adequate weight to the standard non-parole period as a guidepost, insufficiently weighed the gravity of the offending, and did not give appropriate consideration to deterrence in the context of serious drug manufacture.

The Court upheld the Crown appeal and resentenced the appellant on count 1, applying the double jeopardy principle. This principle requires an appellate court on a Crown appeal to impose the minimum sentence that a court might have imposed at first instance, rather than what the appellate court would itself have considered optimal. The Court imposed a total term of 9 years, with a non-parole period of 5 years 6 months. It noted that parity with a co-offender named Arthur had a moderating effect on the increase, and that without that parity consideration the sentence increase would have been more substantial. Special circumstances were found to justify the balance of term of 3 years 6 months, given the appellant's rehabilitation needs.

Orders Made

Conviction Appeal:
- Leave granted to appeal against conviction on count 2
- Appeal allowed
- Conviction and sentence on count 2 quashed

Crown Appeal:
- Crown appeal against sentence upheld
- Sentence on count 1 quashed
- Conviction on count 1 confirmed
- Appellant resentenced on count 1 (taking into account the Form 1 matters) to 9 years' imprisonment: non-parole period of 5 years 6 months commencing 29 September 2006 and expiring 28 March 2012, with a balance of term of 3 years 6 months commencing 29 March 2012 and expiring 28 September 2015
- Earliest parole eligibility date: 28 March 2012

Key Takeaways

  • A summary offence included on an indictment does not confer jurisdiction on the District Court to deal with it; the resulting conviction is invalid and liable to be quashed regardless of whether a guilty plea was entered.
  • Under s 6(1)(c) of the Criminal Procedure Act 1986, offences that must be dealt with summarily cannot be prosecuted on indictment, and jurisdictional defects of this kind are not cured by consent of the parties.
  • The standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999 operates as a legislative guidepost that sentencing courts must engage with substantively; failure to have proper regard to it can constitute a sentencing error.
  • On a Crown appeal, the Court of Criminal Appeal is required to apply the double jeopardy principle and impose the minimum sentence that might have been imposed at first instance, not the sentence the appellate court would independently regard as appropriate.
  • Parity with a co-offender's sentence remains a relevant consideration even on resentencing following a successful Crown appeal, and can operate to moderate the extent of any increase.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 98, 193C(1), 203E, 302
- Criminal Procedure Act 1986 (NSW), s 6(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(1), 29, 29(1)
- Firearms Act 1996 (NSW), ss 7A(1), 39(1)(a)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Postiglione v The Queen (1997) 189 CLR 295
- Einfield v R [2008] NSWCCA 215
- R v Colin [2000] NSWCCA 236
- R v Deng (1996) 91 A Crim R 80
- R v Halls [2008] NSWCCA 251
- R v Harmouche (2005) 158 A Crim R 357
- R v M.A.K; M.S.K [2006] NSWCCA 381
- R v Orcher [1999] NSWCCA 356
- R v Sutton [2004] NSWCCA
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Wall [2002] NSWCCA 42
- R v Wong (1988) 39 A Crim R 1