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59
Court of Criminal Appeal 10 February 2011

Caristo v R

[2011] NSWCCA 7

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE NO POINT OF PRINCIPLE

Citation: Caristo v R [2011] NSWCCA 7
Court: Court of Criminal Appeal, NSW
Date: 10 February 2011
Judges: Giles JA, Adams J, R A Hulme J

Background

The applicant was sentenced in the District Court in October 2009 for two offences of knowingly taking part in the manufacture of not less than a large commercial quantity of a prohibited drug, one involving ecstasy and one involving cocaine. The sentencing judge accepted that the applicant played a relatively low-level role, described as a "mixer and employee" within a larger drug manufacturing enterprise, with his involvement limited to two days in April 2007.

The applicant was 39 at the time of the offences and had a lengthy criminal history. He presented with significant subjective features, including a dysfunctional upbringing, long-standing substance addiction, and psychological and cognitive impairment attributed to a combination of head trauma and prolonged substance abuse.

The sentencing judge imposed a principal sentence of eight years six months for the ecstasy offence, with a non-parole period of six years. A concurrent sentence applied to the cocaine offence. The applicant sought leave to appeal on the single ground that the non-parole period for the ecstasy offence was too long relative to the head sentence.

  • Whether the sentencing judge gave sufficient weight to her own finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 when setting the ratio between the non-parole period and the head sentence.
  • Whether the resulting non-parole period of six years (approximately 70.6% of the total sentence) was appropriate given the circumstances warranting special circumstances.

Decision

R A Hulme J, with whom Giles JA agreed, dismissed the application. His Honour found no error in the sentencing judge's exercise of discretion. The judge had correctly identified special circumstances, reduced the non-parole period below the statutory default of 75 per cent, and applied no wrong principle, failed to take no relevant matter into account, mistook no facts, and reached no result that was unreasonable or plainly unjust.

R A Hulme J rejected the submission that a finding of special circumstances compels a reduction to any particular percentage of the head sentence. The factual circumstances of each case are too variable to support any general proposition. The actual length of the resulting parole period, not merely the percentage ratio, is equally or more important. In this case the potential parole period of two years six months was not shown by any evidence to be insufficient for the purposes the judge identified.

The Court also characterised the applicant's preferred alternative, a parole period of three years rather than two and a half years, as a six-month adjustment to a sentence of eight and a half years. Granting leave to intervene on that basis would have amounted to tinkering with a sentencing discretion properly exercised at first instance.

Adams J agreed with the proposed orders but dissented on one procedural point. His Honour expressed the view that refusing leave to appeal on the Court's own motion, where the Crown had not sought such a refusal and neither party had made submissions on the question, was not the preferable course. His Honour considered it better to express a view on the merits rather than make what he described as an empty order.

Orders Made

  • Leave to appeal refused (per Giles JA and R A Hulme J; Adams J dissented on this procedural point)

Key Takeaways

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not require a non-parole period reduced to any specific percentage of the head sentence. The appropriate reduction depends entirely on the facts of the individual case.
  • The actual length of the parole period, measured in time rather than percentage, is equally or more important than the ratio between the non-parole period and the head sentence.
  • No error is established in a sentencing discretion simply because an applicant can identify an arguably preferable outcome. A minor adjustment to a non-parole period that amounts to tinkering will not justify appellate intervention.
  • Adams J's observations highlight an unsettled procedural question about whether courts should refuse leave to appeal on their own motion when neither party has addressed the point, though this did not affect the substantive outcome.
  • In dismissing the appeal, the Court confirmed that the variability of sentencing fact situations makes it impractical to formulate generalised propositions about the appropriate degree of reduction once special circumstances are established.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Bugmy v R [1990] HCA 181; 169 CLR 525
- Fina'i v R [2006] NSWCCA 134
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Morgan & Morgan v R (1980) 7 A Crim R 146
- Murphy v R [2007] NSWCCA 18
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Bernier (1998) 102 A Crim R 44
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Sutton [2004] NSWCCA 225
- Trad v R [2009] NSWCCA 56