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Court of Criminal Appeal 3 November 2011

El-Jalkh v R

[2011] NSWCCA 236

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER PAROLE PERIOD

Citation: El-Jalkh v R [2011] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 3 November 2011
Judge(s): McClellan CJ at CL, Latham J, Harrison J

Background

The applicant pleaded guilty to one count of conspiracy to import a commercial quantity of MDMA into Australia. The conspiracy involved 62,459 ecstasy tablets containing 4.3721 kg of pure MDMA, and the applicant was the instigator of the scheme. The maximum penalty for the offence was life imprisonment.

Williams DCJ sentenced the applicant on 1 October 2010 to 10 years imprisonment with a non-parole period of 5 years and 3 months. This followed an earlier conviction that had been set aside on appeal in 2009, after which the applicant entered a guilty plea at the new trial.

The applicant sought leave to appeal against the sentence on five grounds, including parity with a co-offender, treatment of a medical condition, fresh evidence of deterioration in that condition, the prison authorities' alleged failure to provide adequate medical treatment, and an error in the commencement date of the sentence.

  • Whether the applicant had a justifiable sense of grievance arising from the lighter sentence imposed on co-offender Paul Kellaway (parity ground).
  • Whether the sentencing judge erred by considering the applicant's medical condition only in fixing the non-parole period, and not the overall term of imprisonment.
  • Whether evidence of deterioration in the applicant's medical condition after sentencing showed the judge lacked a full appreciation of the condition at the time of sentence.
  • Whether the sentencing discretion miscarried because prison authorities failed to make medical treatment available to the applicant.
  • Whether the sentencing judge miscalculated the commencement date of the sentence, having regard to time already served in custody.

Decision

Parity with co-offender: The Court rejected the parity argument. Kellaway had been sentenced by the same judge across multiple drug offences, and was also serving sentences for unrelated matters. The sentencing judge was therefore required to consider the totality of Kellaway's criminality when setting his head sentence and non-parole period for the conspiracy count. A direct comparison between the two sentences was not appropriate in those circumstances, and no justifiable sense of grievance was established.

Medical condition: The Court found that the sentencing judge had taken the applicant's medical condition into account in determining the non-parole period, and that it was open to the judge to treat it in that way. The fresh evidence of deterioration did not demonstrate that the judge had an inadequate appreciation of the condition at the time of sentencing. As for the failure of prison authorities to provide adequate treatment, the Court acknowledged that this was a serious concern. However, it found that the sentencing judge had already expressed frustration at the Department's inaction and had factored those circumstances into the sentence. No miscarriage of the sentencing discretion was established on this basis.

Commencement date error: The Crown conceded that Ground 5 was made out. The sentencing judge had miscalculated the date from which the sentence was to run, failing to give full credit for time already spent in custody. This error required the sentence to be adjusted.

Overall: Latham J added that, setting aside the conceded commencement date error, leave would otherwise have been refused. The criminality involved in instigating a conspiracy to import 4.3 kg of pure MDMA could not have been adequately reflected in any lesser sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Williams DCJ on 1 October 2010 quashed.
  • In substitution, the applicant sentenced to 10 years imprisonment commencing 24 November 2006 and expiring 23 November 2016, with a non-parole period of 5 years and 3 months commencing 24 November 2006 and expiring 23 February 2012.

The net effect was a reduction of one month from the original sentence, correcting the commencement date error.

Key Takeaways

  • A parity argument will not succeed where the co-offender was sentenced in a materially different factual and sentencing context, such as where the co-offender faced multiple offences requiring a totality assessment that affected the sentence imposed for the shared offence.
  • A medical condition does not automatically reduce both the overall term of imprisonment and the non-parole period; a sentencing judge may lawfully take it into account in fixing only the non-parole period, depending on the circumstances.
  • Fresh evidence of post-sentence deterioration in a medical condition will not establish error unless it demonstrates that the sentencing judge lacked an adequate appreciation of the condition at the time of sentence.
  • Failure by prison authorities to provide adequate medical treatment does not of itself constitute a miscarriage of the sentencing discretion, particularly where the sentencing judge has already acknowledged and accounted for the risk of that failure in the sentence imposed.
  • Where a sentencing judge miscalculates the commencement date of a sentence, giving insufficient credit for pre-sentence custody, that error requires correction even where the substantive sentence is otherwise unimpeachable.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233B
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- El-Jalkh v R [2009] NSWCCA 139
- Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1
- R v Keir [2004] NSWCCA 106
- R v Szabo [2003] NSWCCA 431
- Fisher v R [2008] NSWCCA 103
- Withers v R [2009] NSWCCA 133
- R v BEG [2001] NSWCCA 341
- R v Munday (1981) 2 NSWLR 177
- R v Vachalec (1981) 1 NSWLR 351
- Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360