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Court of Criminal Appeal 9 September 2011

Aiken v R

[2011] NSWCCA 208

Drugs
CRIMINAL LAW DRUG SUPPLY OFFENCES PLEA OF GUILTY NO ORDER FOR REVOCATION OF PAROLE MADE ERROR ESTABLISHED ADJUSTMENTS TO INDIVIDUAL SENTENCES

Citation: Aiken v R [2011] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 9 September 2011
Judges: McClellan CJ at CL, Simpson J, Fullerton J

Background

The applicant pleaded guilty in the District Court to eight counts of knowingly taking part in the supply of prohibited drugs, principally methylamphetamine in varying quantities, along with two counts involving small quantities of cannabis. All offences were committed while he was already serving a prison sentence for earlier offences. A Form 1 offence of possessing a mobile telephone in custody without reasonable excuse was also taken into account on sentencing for the most serious count.

The District Court imposed an effective sentence of seven years imprisonment, comprising a non-parole period of five years and an additional term of two years. The sentence was structured through a combination of concurrent and partially accumulated fixed terms and a non-parole period, backdated to commence on 16 April 2009, a date calculated by reference to the expiry of the parole period of the applicant's earlier sentence.

The applicant sought leave to appeal on three grounds. Two were effectively conceded by the Crown: first, that the backdating of the sentence was erroneous; and second, that the individual sentences were internally inconsistent. The third ground raised parity with the sentence imposed on a co-offender.

  • Whether it was an error to backdate the commencement of the new sentence to the expiry date of the parole period of an earlier sentence, in circumstances where no revocation of parole had been made
  • Whether the individual sentences imposed across the multiple counts were internally inconsistent, given the relative quantities of drugs involved in each count
  • Whether the applicant had a legitimate sense of grievance arising from a disparity between his sentence and that imposed on his co-offender

Decision

Ground 1: Backdating to parole expiry without revocation

The Court confirmed that a sentencing judge has a discretion to backdate a sentence to a date prior to the expiry of a parole period where parole has been revoked, as established in Callaghan v The Queen. However, where no revocation of parole has been made, it is an error to do so. Here, the applicant's custody after 16 October 2008 was solely referable to the present offences, he had been eligible for release to parole on that date, and the Parole Board had made no revocation order. The Court found the effective sentence should have commenced on 16 October 2008, not 16 April 2009.

Ground 2: Inconsistency between individual sentences

The Court accepted the Crown's concession that the sentences for counts 2 and 5 were too high relative to the sentence for count 3, which the sentencing judge had identified as the most serious offence. The distinguishing factor between counts was the quantity of drugs involved, and the individual sentences did not reflect that hierarchy coherently. However, where the affected sentences were wholly subsumed within the overall sentence structure, they produced no material injustice in isolation. The Court nonetheless made adjustments to those individual sentences to restore internal consistency.

Ground 3: Parity with the co-offender

The Court declined to intervene on parity grounds. The two offenders were co-offenders on only some of the charges, and each faced a different range of counts. Considerations of totality inevitably influenced the individual sentences for each, making direct comparison of limited value. After the adjustments made under grounds 1 and 2, the Court was not persuaded that any remaining difference in sentences was so marked or glaring as to warrant further intervention. The Court noted that the applicant's offending was significantly aggravated by the fact that it occurred while he was in custody.

Orders Made

  • Leave to appeal granted
  • Appeal upheld; sentences imposed in the District Court quashed
  • Applicant re-sentenced as follows:
  • Count 7: fixed term of 6 months, commencing 16 October 2008, expiring 15 April 2009
  • Count 6: fixed term of 12 months, commencing 16 October 2008, expiring 15 October 2009
  • Count 1: fixed term of 2 years 9 months, commencing 16 January 2009, expiring 15 October 2011
  • Count 2: fixed term of 3 years, commencing 16 April 2009, expiring 15 April 2012
  • Count 5: fixed term of 2 years 3 months, commencing 16 July 2010, expiring 15 October 2012
  • Count 3 (with Form 1 matter): non-parole period of 3 years commencing 16 October 2010, expiring 15 October 2013; additional term of 2 years expiring 15 October 2015
  • Count 8: fixed term of 12 months, commencing 16 October 2010, expiring 15 October 2011
  • Count 9: fixed term of 6 months, commencing 16 October 2010, expiring 15 April 2011

Key Takeaways

  • Backdating a new sentence to the expiry of the parole period of an earlier sentence is a sentencing error where the Parole Board has not revoked the offender's parole. The distinction between revoked and unrevoked parole is determinative of whether this discretion may lawfully be exercised.
  • Under ss 24 and 47(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to take into account any time an offender has spent in custody referable to the offences being sentenced.
  • Internal inconsistency among individual sentences in a multi-count matter can establish error, particularly where the sentences fail to reflect the hierarchy of seriousness determined by the sentencing judge. Where, however, the affected individual sentences are wholly subsumed within the overall sentence, the inconsistency may not produce material injustice.
  • Parity arguments carry limited force where co-offenders faced different charge profiles. The Court of Criminal Appeal confirmed that considerations of totality inevitably shape individual sentences differently for each offender, reducing the utility of count-by-count comparisons.
  • Committing offences while already in custody remains a significant aggravating factor under NSW sentencing law, and the Court treated it as such in re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 30, 32(1)(h)
- Summary Offences Act 1988 (NSW), s 27DA(1)

Cases
- Callaghan v The Queen (2006) 160 A Crim R 145
- Postiglione v The Queen (1997) 189 CLR 2
- R v Ellmore [2002] NSWCCA 242
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
- Baxter v R (2007) 173 A Crim R 284