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Court of Criminal Appeal 7 May 2010

R v Parkinson

[2010] NSWCCA 89

DrugsFirearms & weapons
CRIMINAL LAW CROWN APPEAL PAROLE PERIOD

Citation: R v Parkinson [2010] NSWCCA 89
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2010
Judge(s): McClellan CJ at CL, Buddin J, Hall J

Background

The respondent, Clinton Parkinson, pleaded guilty in the District Court to supplying methylamphetamine in a quantity exceeding the commercial threshold (563.3 grams) and to two counts of selling a pistol to a person not authorised to possess it. Each offence carried a maximum penalty of 20 years imprisonment and attracted a standard non-parole period of 10 years. The sentencing judge also took into account additional drug and prohibited weapons offences listed on two Forms 1 (a mechanism under NSW law that allows related offences to be considered at sentencing without separate convictions being recorded).

The District Court sentenced the respondent to an overall effective term of 7 years imprisonment with a non-parole period of 3 years and 9 months. All sentences were imposed concurrently. The Crown appealed, contending that both the individual sentences and the overall sentence were manifestly inadequate.

The drug offending arose from a targeted police operation in which a covert operative made ten controlled purchases from the respondent over approximately three months in the Albury region. The firearms offending involved the respondent arranging the sale of pistols to the operative. The respondent was neither a drug user nor an alcohol user and was motivated by profit throughout.

  • Whether the sentences imposed were manifestly inadequate
  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offences
  • Whether the sentencing judge gave adequate reasons for departing from the standard non-parole period
  • Whether the sentencing judge erred by imposing wholly concurrent sentences
  • Whether a failure by the prosecutor to assist the sentencing judge can itself constitute an error affecting sentence

Decision

The Court of Criminal Appeal allowed the Crown appeal on all grounds, finding that the sentences imposed by the District Court were manifestly inadequate. The Court held that the sentencing judge had significantly understated the objective seriousness of the drug supply offence. The quantity of methylamphetamine was well above the commercial threshold, the supply was sustained over months through multiple transactions, and the respondent operated as a central figure in a distribution network, often involving intermediaries.

On the standard non-parole period, the Court found that the sentencing judge's reasons for departing downward from the 10-year benchmark were inadequate. While a sentencing judge retains discretion to depart from the standard non-parole period where circumstances warrant, reasons must be sufficient to explain why the case falls below the legislative reference point.

Regarding the wholly concurrent sentences, the Court found this was an error in principle. Where an offender commits separate and distinct criminal acts (supplying drugs on one hand, and selling illegal firearms on the other), imposing entirely concurrent sentences fails to reflect the true criminality involved. The Court structured the resentencing so that the firearm sentences commenced two years into the non-parole period of the drug sentence, providing partial concurrency while still acknowledging the separate nature of the offending.

The Court also addressed the argument that the prosecutor's failure to assist the sentencing judge with relevant materials or submissions could constitute a sentencing error. The Court acknowledged this as a relevant consideration, though the primary basis for resentencing remained the manifest inadequacy of the original sentences.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • Respondent resentenced as follows:
  • Count 1 (drug supply): non-parole period of 6 years commencing 9 December 2008, expiring 8 December 2014; balance of term of 2 years expiring 8 December 2016
  • Count 2 (selling pistol): non-parole period of 4 years and 6 months commencing 9 December 2010, expiring 8 June 2015; balance of term of 3 years expiring 8 June 2018
  • Count 3 (selling pistol): non-parole period of 4 years and 6 months commencing 9 December 2010, expiring 8 June 2015; balance of term of 3 years expiring 8 June 2018
  • Earliest parole eligibility: 8 June 2015

Key Takeaways

  • Wholly concurrent sentences for separate and distinct criminal acts (drug supply and illegal firearms sales) may constitute an error in principle, particularly where the offending is of significant volume and duration.
  • The standard non-parole period functions as a legislative reference point, and a sentencing judge must provide adequate reasons when departing from it; bare or insufficient reasoning will be a ground of appeal.
  • Objective seriousness in commercial drug supply cases must be assessed with reference to the full context of the offending, including the total quantity supplied, the number of transactions, the duration of the conduct, and the offender's role in the supply chain.
  • A profit-driven motive, combined with the absence of personal drug use, is a factor that may weigh against leniency in sentencing for drug supply offences.
  • The Court of Criminal Appeal confirmed that the failure of a prosecutor to place relevant material before the sentencing court is a matter that can bear on the sentencing process, though the decision leaves detailed elaboration of that principle to future cases.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 51(1A)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v JW [2010] NSWCCA 49
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Graham v R [2008] NSWCCA 309
- KC v R [2009] NSWCCA 110
- Ku v R [2008] NSWCCA 258
- R v Chan [1999] NSWCCA 103
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Burgess [2006] NSWCCA 319
- R v Dang [2005] NSWCCA 430
- R v Knight; R v Biuvanua (2007) 176 A Crim R 338
- R v Mills [2005] NSWCCA 175
- R v Mulato [2006] NSWCCA 282
- R v Truong [2006] NSWCCA 318
- R v Walker [2005] NSWCCA 109
- R v Wall (2002) NSWCCA 42
- SCJ v R [2008] NSWCCA 258