AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 10 December 2010

Hinchcliffe v R

[2010] NSWCCA 306

DrugsTheft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES RECEIVING STOLEN PROPERTY POSSESSION OF HOUSEBREAKING IMPLEMENTS CRIMINAL LAW

Citation: Hinchcliffe v R [2010] NSWCCA 306
Court: New South Wales Court of Criminal Appeal
Date: 10 December 2010
Judges: Simpson J (principal judgment); Blanch J and RA Hulme J (agreeing)

Background

The applicant pleaded guilty in the District Court at Dubbo to receiving stolen property and four counts of supplying prohibited drugs (morphine, dexamphetamine, methylphenidate, and buprenorphine). A further offence of possessing housebreaking implements was taken into account on a Form 1. The charges arose from a pharmacy break-in in Trangie, NSW, in January 2009, after which a large quantity of prescription drugs was taken from the pharmacy safe.

Police executed a search warrant at the applicant's home eight days later. The applicant directed officers to a safe under the bed in his room, which contained a balaclava, quantities of the stolen drugs, and various tools including bolt cutters, a jemmy, and a hammer. The quantities of four of the drugs exceeded the traffickable threshold under the Drug Misuse and Trafficking Act 1985, giving rise to a deemed possession-for-supply.

At sentence, the District Court imposed three-year terms (with two-year non-parole periods) on each of the four drug supply counts, accumulating each successive sentence by one year. The receiving sentence was then accumulated on top of those. The total effective sentence was eight years and six months with a non-parole period of six years.

  • Whether the sentencing judge failed to assess the objective seriousness of the receiving offence and drug supply offences correctly
  • Whether the sentencing judge failed to give effect to a finding of special circumstances in structuring the sentences
  • Whether the individual sentences on each count were manifestly excessive
  • Whether the extent of accumulation of the sentences, taken together, was manifestly excessive

Decision

The Court of Criminal Appeal found no error in the individual sentences imposed on any of the counts. A three-year term with a two-year non-parole period for each drug supply offence was described as "unremarkable, unexceptionable and incontestably appropriate." Similarly, no error was established in the objective seriousness assessments or in the sentencing judge's treatment of special circumstances at the level of individual counts.

The Court did, however, find that the degree of accumulation applied to the four drug supply counts was manifestly excessive. All four supply offences arose from the same circumstances and could not be differentiated except by the identity and quantity of the drug involved. The Court applied the principle, drawn from cases including Cahyadi v R and Pearce v The Queen, that where offences form part of a single criminal enterprise, a sentence for one offence can comprehend and reflect the criminality of the others. Full accumulation of each drug count on the last was inconsistent with that principle.

The receiving offence was treated differently. The Court accepted that its criminality was distinct from the drug supply offences and warranted a degree of accumulation. The receiving sentence was therefore made to commence after the concurrent drug supply sentences expired.

The applicant was re-sentenced so that all four drug supply counts ran concurrently, followed by the receiving sentence (taking into account the Form 1 offence) running consecutively. The overall result was a non-parole period of four years and a balance of term of two years and six months, incorporating an allowance for special circumstances, with the non-parole period representing approximately 61.5 per cent of the total sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Applicant re-sentenced as follows:
  • Counts 3 to 6 (drug supply): each sentence of imprisonment comprising a non-parole period of 2 years commencing 6 January 2010 and expiring 5 January 2012, with a balance of term of 1 year expiring 5 January 2013 (all counts concurrent)
  • Count 2, receiving (taking into account the Form 1 offence): imprisonment comprising a non-parole period of 2 years commencing 6 January 2012 and expiring 5 January 2014, with a balance of term of 2 years and 6 months expiring 5 July 2016
  • Overall effective sentence: non-parole period of 4 years, balance of term of 2 years and 6 months

Key Takeaways

  • Where multiple drug supply offences arise from a single criminal enterprise and cannot be meaningfully differentiated in criminality, full accumulation of each sentence upon the last is liable to produce an overall term that is manifestly excessive, even where each individual sentence is appropriate.
  • The Court of Criminal Appeal confirmed that the principle in Cahyadi v R operates so that the sentence for one offence in a series may "comprehend and reflect" the criminality of the others, reducing or eliminating the need for accumulation.
  • No error was established in the individual three-year sentences (two-year non-parole periods) imposed for each supply of a prescription drug in a quantity exceeding the traffickable threshold.
  • Distinct criminality between offences remains a relevant basis for some degree of accumulation: the receiving sentence, involving different conduct from the supply offences, was appropriately made consecutive to the drug sentences.
  • In dismissing the grounds alleging errors in objective seriousness assessment and special circumstances treatment, the Court confirmed that appellate intervention on those grounds requires demonstrated error at the level of the individual count, not merely disagreement with the result.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 188(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 25(1), 29

Cases
- Adams v The Queen [2008] HCA 15; 234 CLR 143
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Georgopoulos v R [2010] NSWCCA 246
- Nahlous v R [2010] NSWCCA 58
- Nguyen v R [2007] NSWCCA 14
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Merrin [2007] NSWCCA 255; 174 A Crim R 100
- R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Pickett [2010] NSWCCA 273
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Weldon; R v Carberry [2002] NSWCCA 475; 136 A Crim R 55
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- Thorn v R [2009] NSWCCA 294
- Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584