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10
Court of Criminal Appeal 25 June 2010

R v Sellars

[2010] NSWCCA 133

Drugs
CRIMINAL LAW CROWN APPEAL PAROLE PERIOD PAROLE PERIOD WHEN SENTENCING

Citation: R v Sellars [2010] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 25 June 2010
Judge(s): McClellan CJ at CL, Grove J, Johnson J

Background

The respondent was convicted of supplying not less than the commercial quantity of amphetamine, contrary to the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The respondent pleaded guilty in the Local Court and received a 25% discount for that plea.

The District Court sentenced the respondent to 6 years' imprisonment with a non-parole period of 3 years, taking into account four additional offences dealt with on a Form 1 (two counts of supplying cannabis, one count of possessing cannabis, and one count of possessing amphetamine). The sentencing judge also found special circumstances to justify the additional term exceeding one-third of the non-parole period.

The Crown appealed the sentence as manifestly inadequate, raising further grounds concerning the sentencing judge's failure to adequately record reasons for the special circumstances finding, to properly identify where the offending sat in the range of objective seriousness, and to give adequate regard to the standard non-parole period.

  • Whether the sentencing judge failed to make a sufficient record of reasons for finding special circumstances justifying the additional term exceeding one-third of the non-parole period
  • Whether the sentencing judge failed to adequately determine where the offence sat within the range of objective seriousness
  • Whether the sentencing judge gave adequate regard to the standard non-parole period of 10 years when imposing sentence
  • Whether the sentence was, in all the circumstances, manifestly inadequate

Decision

The Court of Criminal Appeal upheld the Crown's appeal, finding the sentence imposed in the District Court was manifestly inadequate. The Court found that the offending was serious: it involved a sustained, business-like operation of drug dealing conducted over four months, seven days a week, generating over 10,000 intercepted communications. The respondent was not at the top of a trafficking hierarchy, but his role in distributing illegal drugs warranted significant punishment.

The Court assessed the objective seriousness of the offence as falling below, but only marginally below, the mid-range. The respondent committed the offences while on conditional liberty and subject to a good behaviour bond, which significantly aggravated the offending. The Form 1 matters also required that an additional penalty be reflected in the sentence.

Regarding special circumstances, the Court accepted the sentencing judge was justified in making that finding, given the respondent's obvious need for supervision and support upon release to avoid relapsing into drug dealing. However, the Court noted that under the Crimes (Administration of Sentences) Regulation 2008, the maximum supervised period for non-serious offenders is 3 years, which capped the permissible additional term on parole.

Applying a 25% discount for the guilty plea and making its own finding of special circumstances, the Court resentenced the respondent to a non-parole period of 5 years with an additional term of 3 years, giving a total sentence of 8 years.

Orders Made

  • Appeal upheld and the sentence imposed in the District Court quashed
  • The respondent sentenced to a non-parole period of 5 years commencing 27 November 2008, with an additional term of 3 years
  • The respondent eligible for release to parole on 26 November 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must make a sufficient record of reasons when finding special circumstances to justify an additional term exceeding one-third of the non-parole period; failing to do so constitutes error.
  • A sentencing court is required to identify, with adequate reasoning, where an offence sits within the range of objective seriousness, and must have explicit regard to the applicable standard non-parole period as a statutory reference point.
  • Under the Crimes (Administration of Sentences) Regulation 2008, the maximum period of supervised parole for a non-serious offender is 3 years, which limits the practical effect of any special circumstances finding to that cap.
  • Offending while subject to conditional liberty and a good behaviour bond constitutes a significant aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
  • A sustained drug supply operation conducted over several months in a business-like manner, even absent a senior role in a trafficking hierarchy, warrants serious penalties and requires a sentence that properly reflects the multiplicity of criminal acts involved.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25(2), s 10(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Administration of Sentences) Regulation 2008 (NSW), reg 228
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j), s 21A(2)(m)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] 56 NSWLR 146
- Le Cerf [1976] 8 ALR 349
- Porter v R [2008] NSWCCA 145
- R v Cheh [2009] NSWCCA 134
- R v Knight; Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
- R v McEvoy [2010] NSWCCA 110
- R v Richards [1981] NSWLR 464
- R v Snyder [2004] NSWCCA 134
- R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740