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Court of Criminal Appeal 20 September 2010

HOWARTH v REGINA

[2010] NSWCCA 211

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Howarth v Regina [2010] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 20 September 2010
Judge(s): McColl JA, Hulme J, Latham J

Background

The applicant pleaded guilty in the District Court to five offences: supplying ecstasy, supplying methylamphetamine, two counts of unauthorised possession of a pistol, and dealing with the proceeds of crime. Three further offences (possessing cannabis, possessing ammunition without a licence, and possessing a precursor for manufacturing a prohibited drug) were taken into account on a Form 1, meaning they were considered at sentencing without separate convictions being recorded. Sorby DCJ imposed a fixed term of two years on the ecstasy supply count and a non-parole period of two years with a balance of term of one year on the methylamphetamine supply count. The accumulated sentence produced an aggregate non-parole period of four years with a balance of term of one year.

The applicant sought leave to appeal against sentence. His criminal history comprised eight summary convictions only, and he had no prior terms of imprisonment.

  • Whether the sentences imposed for the two drug supply offences were manifestly excessive
  • Whether the aggregate sentence was manifestly excessive having regard to the degree of accumulation applied
  • Whether the sentencing judge failed to give practical effect to a finding of special circumstances, resulting in an aggregate non-parole period representing 80% of the total sentence

Decision

Manifest excess in drug sentences: The Court of Criminal Appeal rejected this ground. The applicant was operating as a drug dealer on the NSW Central Coast, had admitted as much under cross-examination, and possessed quantities of both ecstasy and methylamphetamine significantly above the traffickable threshold. Numerous SMS messages on his phone indicated advance orders. The applicant had not worked for four years yet was spending $200 to $300 daily on drugs and gambling. A comparison with the sentences in Braithwaite v R, even if accepted as favourable to the applicant, did not establish that the sentences fell outside the range of a legitimate sentencing discretion.

Manifest excess in the aggregate sentence: This ground depended substantially on the manifest excess argument for the drug offences. Because that argument failed, the aggregate sentence contention also failed. The Court noted that an effective sentence of five years for the totality of the offending was far from excessive, given that both drug supply offences carried maximum penalties of 15 years and the firearm offences each carried a maximum of 14 years.

Special circumstances: This ground succeeded. The sentencing judge had expressly found special circumstances based on the applicant's need for ongoing drug rehabilitation, then imposed an aggregate non-parole period representing 80% of the aggregate sentence. The ordinary statutory proportion without a special circumstances finding produces a non-parole period of three-quarters of the head sentence. The Court followed Jackson v R, where Fullerton J (with McClellan CJ at CL and Simpson J agreeing) had addressed almost identical circumstances and found that a stated intention to impose a particular non-parole period did not cure a failure to give full effect to a special circumstances finding after accumulation. The Court reasoned that a special circumstances finding premised on rehabilitation could only contemplate rehabilitation in the community: if prison-based rehabilitation had been the concern, no such finding would have been necessary.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The sentence on count 2 (supply methylamphetamine) set aside; in lieu, a non-parole period of 18 months imposed from 25 August 2010, expiring 24 February 2012, with a balance of term of 18 months expiring 24 August 2013
  • The applicant eligible for release to parole on 25 February 2012

Key Takeaways

  • Where a sentencing judge expressly finds special circumstances based on the need for rehabilitation in the community, the aggregate sentence structure must reflect that finding by allowing an extended period of supervision on parole beyond the statutory default proportion.
  • A stated intention to impose a particular non-parole period does not, by itself, demonstrate that a special circumstances finding has been given full effect after sentences are accumulated.
  • The Court confirmed the approach in Jackson v R: if the rationale for a special circumstances finding is community-based rehabilitation, the sentence structure must provide a meaningfully extended parole period to give effect to that rationale.
  • Comparing individual sentences to those in earlier decisions does not establish manifest excess unless the comparison shows the sentence falls outside the range of a legitimate sentencing discretion.
  • In assessing totality for a drug supply offender, the Court of Criminal Appeal treated an effective five-year sentence as appropriate where the offender was running a commercial drug operation, possessed unlicensed firearms, and had multiple offences considered at sentencing.

Legislation and Cases Referenced

Cases:
- Braithwaite v R [2005] NSWCCA 451
- Jackson v R [2010] NSWCCA 162

Legislation: No specific legislation cited by name in the provided judgment text, though the offences and maximum penalties discussed arise under NSW drug supply and firearms legislation, and the special circumstances provisions refer to the standard statutory non-parole period proportion under NSW sentencing law.