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Court of Criminal Appeal 30 July 2010

Jamie Peter DOLMAN v R

[2010] NSWCCA 137

Drugs
CRIMINAL LAW ONGOING SUPPLY OF METHYLAMPHETAMINE FORM 1 MATTERS

Citation: Jamie Peter Dolman v R [2010] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 30 July 2010
Judges: McClellan CJ at CL, Hidden J, Johnson J

Background

The applicant was a 35-year-old man with a lengthy criminal history of dishonesty and drug offences. In March 2008, while subject to a suspended sentence bond under s 12 of the Crimes (Sentencing Procedure) Act 1999, he sold small quantities of methylamphetamine to an undercover police officer on three separate occasions. He pleaded guilty to ongoing supply of a prohibited drug under s 25A of the Drug Misuse and Trafficking Act 1985, with three further offences taken into account on a Form 1 (a mechanism by which related charges are acknowledged at sentencing without separate conviction).

The District Court revoked the applicant's existing s 12 bond and sentenced him to two years imprisonment for the earlier drug offences, with a non-parole period of 18 months commencing 17 March 2008. For the ongoing supply offence, the sentencing judge then imposed a further term of 3 years and 4 months, accumulated upon the earlier sentence, producing an aggregate of approximately 4 years and 10 months with a non-parole period of 4 years.

The applicant sought leave to appeal, arguing that the sentencing judge had made a legal error in calculating the head sentence for the ongoing supply offence, that the aggregate sentence left an inadequate period of parole eligibility, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by fixing the non-parole period first and then working backwards to derive the head sentence by applying the statutory 75% ratio
  • Whether the aggregate sentence, arising from total accumulation of one sentence upon another, left an adequate period of parole eligibility
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal found a clear error in the way the head sentence had been constructed. After first announcing a total term of 3 years with a non-parole period of 2 years and 6 months, the sentencing judge asked the Crown whether the "statutory ratio" was correct. When told it was not, he increased the head sentence from 3 years to 3 years and 4 months to achieve a 75% ratio. This approach inverted the required process. Section 44(1) of the Crimes (Sentencing Procedure) Act 1999 requires a court to fix the head sentence first and then set a non-parole period of at least 75% of that term, unless special circumstances justify a departure. The Crown prosecutor in the appeal properly conceded the error.

Hidden J (with whom McClellan CJ at CL and Johnson J agreed) held that the correct head sentence was the 3-year term the sentencing judge had originally proposed, before the erroneous adjustment. That figure was considered appropriate given the low objective gravity of the offence, the applicant's criminal history, the fact the offending occurred while he was subject to a s 12 bond, and the need to account for the Form 1 matters.

On the question of special circumstances, Hidden J found that total accumulation of the ongoing supply sentence upon the non-parole period of the earlier sentence warranted a departure from the standard non-parole ratio. The Court also took into account fresh evidence that the applicant had been participating in a drug and alcohol programme in custody and appeared to be responding well. The resulting non-parole period for the ongoing supply offence was set at 1 year and 9 months, producing an effective aggregate non-parole period of approximately 75% of the combined 4-year-and-6-month sentence, with a parole eligibility period of roughly 15 months.

The Court did not find it necessary to resolve the manifest excess ground, having already intervened on the sentencing methodology ground.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence for ongoing supply of a prohibited drug quashed
  • In lieu, and taking into account the Form 1 matters, the applicant sentenced to a non-parole period of 1 year and 9 months commencing 16 September 2009 and expiring 15 June 2011, and a balance of term of 1 year and 3 months commencing 16 June 2011 and expiring 15 September 2012

Key Takeaways

  • Under s 44(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must fix the head sentence first and then determine the non-parole period, not reverse-engineer the head sentence by applying the statutory ratio to a pre-determined non-parole period.
  • Working backwards from a fixed non-parole period to produce a head sentence that achieves a 75% ratio constitutes a legal error warranting appellate intervention, as the Crown properly conceded in this case.
  • Where sentences are accumulated, the resulting compression of parole eligibility across the aggregate term may itself constitute special circumstances justifying a departure from the standard non-parole ratio.
  • Total accumulation of a fresh sentence upon the non-parole period of an existing sentence is not automatically impermissible; the Court of Criminal Appeal confirmed it was appropriate on these facts, given the offending occurred while the applicant was subject to a s 12 bond.
  • Fresh evidence of rehabilitation efforts undertaken after the original sentencing, such as participation in a drug and alcohol programme in custody, may be received and considered on re-sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 44(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- R v Tobar [2004] NSWCCA 391, 150 A Crim R 104
- R v Suaalii [2005] NSWCCA 206
- R v Mauai [2005] NSWCCA 207
- R v Clarke [2009] NSWCCA 49