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Court of Criminal Appeal 5 November 2010

Briggs v R

[2010] NSWCCA 250

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PAROLE PERIOD

Citation: Briggs v R [2010] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 5 November 2010
Judge(s): Hodgson JA, Price J, Fullerton J

Background

The appellant pleaded guilty in the Local Court to one count of supplying a large commercial quantity of methylamphetamine, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Police found over 4,284 grams of methylamphetamine at his home (more than four times the large commercial quantity threshold), along with significant cash, drug paraphernalia, a pill press, and ammunition. The potential retail value of the drugs was estimated at up to $642,675.

The appellant was 30 years old at sentencing. His drug use had escalated sharply following the death of his first child in utero in 2008, and a forensic psychiatrist found he was suffering mild drug-induced psychosis at the time of the offending. The sentencing judge in the District Court accepted his genuine remorse, good rehabilitation prospects, and the causal link between his psychiatric state and the offending, ultimately placing the objective seriousness of the offence below the mid-range.

In the District Court, the appellant was sentenced on the supply count to a non-parole period of 8 years with a balance of term of 1 year and 9 months, a total of 9 years and 9 months. The ratio of non-parole period to total term was approximately 82 per cent, exceeding the statutory default ratio of 75 per cent. The appellant sought leave to appeal, arguing the sentencing judge erred in failing to find special circumstances and in failing to impose a reduced non-parole period.

  • Whether the sentencing judge erred by failing to consider and find "special circumstances" justifying a departure from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by failing to impose a non-parole period that adequately reflected all relevant subjective circumstances
  • Whether the non-parole period of 8 years was excessive given the findings made

Decision

The Court of Criminal Appeal rejected the appellant's primary argument that the sentencing judge was obliged to find special circumstances. Fullerton J (with whom Hodgson JA and Price J agreed) held that no error was demonstrated in the refusal to find special circumstances, and that fixing a non-parole period of 8 years did not of itself constitute a miscarriage of discretion. The Court was not persuaded that the subjective circumstances required a lesser minimum custodial term.

However, the Court identified a separate and limited error in the sentence structure. The sentencing judge's silence about why the non-parole period exceeded the statutory 75 per cent ratio left the Court with doubt as to whether he had given appropriate attention to s 44 of the Crimes (Sentencing Procedure) Act 1999. That provision establishes the default ratio between the non-parole period and the total term, and departing from it without explanation indicated a possible failure to engage with the statutory framework.

On that limited basis, the Court intervened and restructured the sentence. The total term of 9 years and 9 months remained the same, but the non-parole period was reduced from 8 years to 7 years and 3 months, with the balance of term increased to 2 years and 6 months. This brought the sentence into a ratio consistent with the statutory default.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed and replaced with a term of imprisonment of 9 years and 9 months, comprising:
  • Non-parole period of 7 years and 3 months commencing 21 September 2008, expiring 20 December 2015
  • Balance of term of 2 years and 6 months, expiring 20 June 2018

Key Takeaways

  • A sentencing judge is not automatically required to find special circumstances simply because an offender has good subjective circumstances, including psychiatric vulnerability and strong rehabilitation prospects.
  • Where a sentence structure departs from the 75 per cent non-parole period ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge must engage with that departure; silence on the point may itself constitute an error susceptible to appellate correction.
  • The Court of Criminal Appeal confirmed that the appellant's argument about an excessive non-parole period largely failed, and only the structural issue about the unexplained ratio justified intervention.
  • Upholding the total term while adjusting the internal structure of the sentence demonstrates that appellate intervention can be narrowly confined to the specific error identified, without disturbing the overall sentencing assessment.
  • A causal connection between a psychiatric condition and drug-related offending may support a finding of below mid-range objective seriousness, even where the scale of the operation is very substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3), 44, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 11B(1), 25(2), Schedule 1
- Firearms Act 1996 (NSW), s 65(3)

Cases:
- Ayoub v R; El Masri v R [2010] NSWCCA 196
- Clarke v R [2009] NSWCCA 49
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Fidow [2004] NSWCCA 172
- R v Pevy [2004] NSWCCA 414
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Wakefield v R [2010] NSWCCA 12