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Court of Criminal Appeal 11 November 2010

BUTTON v R

[2010] NSWCCA 264

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Button v R [2010] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 11 November 2010
Judges: Simpson J, Kirby J, Latham J (Latham J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court at Orange to two drug supply offences under the Drug Misuse and Trafficking Act 1985: ongoing supply of ecstasy (carrying a maximum of 20 years) and a separate supply of ecstasy (carrying a maximum of 15 years). A further three supply offences were taken into account on a Form 1. Police described the applicant as a street-level dealer who had supplied undercover operatives with 10 ecstasy tablets over a month, and who was arrested in possession of 26 tablets he admitted he intended to sell.

The applicant was 23 years old at the time of the offences. He had a stable employment history as a qualified bricklayer and forklift driver, was highly regarded by his employer, and had only one prior conviction for low-range drink driving. The sentencing judge found favourable prospects of rehabilitation and identified special circumstances.

At sentence, Blackmore SC DCJ imposed an aggregate term of three years imprisonment with a non-parole period of 18 months. The applicant appealed, arguing he had been denied procedural fairness and that the sentence was manifestly excessive.

  • Whether the sentencing judge denied the applicant procedural fairness by imposing a sentence materially longer than the sentence the judge had represented, during submissions, that he intended to impose, and by doing so without giving the applicant an opportunity to be heard further.
  • Whether the resulting sentence was manifestly excessive in the circumstances.

Decision

During submissions on 24 May 2010, the judge indicated that he was minded to impose an aggregate non-parole period of one year, a position the Crown did not oppose. The judge stated he intended to release the applicant within one year of going into custody. When sentence was delivered 11 days later, however, the judge imposed an aggregate non-parole period of 18 months, without inviting further submissions from either party.

The Court of Criminal Appeal found that this departure constituted a denial of procedural fairness. Applying the principles from Baroudi v R [2007] NSWCCA 48 and the High Court's guidance in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, Latham J held that the relevant question is not merely whether a representation was departed from, but whether that departure caused practical injustice. The court identified two possible explanations: either the judge had, in the course of a busy country sittings without a transcript, simply forgotten the exchange; or he had reconsidered the matter without notifying the parties. In either case, the applicant suffered practical injustice because he was denied an opportunity to address the sentencing court before the longer sentence was imposed.

The court declined to consider the manifest excess ground, though Latham J noted an inclination to the view that the sentence imposed was within the legitimate range of sentencing discretion. The procedural fairness ground alone was sufficient to allow the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 4 June 2010 on Count 1 quashed.
  • In lieu, a non-parole period of 12 months dating from 25 September 2009 (expiring 24 September 2010), with a balance of term of 21 months (expiring 24 June 2012), taking into account the Form 1 offences.
  • The applicant entitled to be released forthwith.

Key Takeaways

  • A sentencing judge who announces the sentence they intend to impose, and whose announcement is accepted by both parties, must give the parties an opportunity to be heard before departing from that stated intention. Failure to do so may constitute a denial of procedural fairness.
  • The controlling question is not simply whether a judicial representation was departed from, but whether that departure caused practical unfairness: the test drawn from Re Minister for Immigration; Ex parte Lam is concerned with practical injustice, not mere disappointment of expectation.
  • Where a judge departs from a stated sentencing intention after reserving, the Court of Criminal Appeal confirmed that some explanation for the departure, or an opportunity to address the revision, is expected, whether in the remarks on sentence or before they are delivered.
  • In applying Baroudi v R, the Court of Criminal Appeal held that the appropriate remedy was to impose the sentence that the judge and parties had accepted as appropriate, noting the Crown did not argue that such a sentence would be manifestly inadequate.
  • Procedural fairness obligations in sentencing proceedings can be engaged independently of the manifest excess ground, and may themselves produce a successful appeal where no manifest excess is established.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A(1)

Cases
- Baroudi v R [2007] NSWCCA 48
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1