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Court of Criminal Appeal 4 September 2012

R v Anderson

[2012] NSWCCA 175

Drugs

Citation: R v Anderson [2012] NSWCCA 175
Court: Court of Criminal Appeal
Date: 4 September 2012
Judges: Allsop P, Davies J, Campbell J

Background

The respondent pleaded guilty to supplying not less than a commercial quantity of methylamphetamine (between 350 and 400 grams) as part of an organised drug syndicate operating between Sydney and Western Australia. Her role included receiving drug shipments from the syndicate's principal, on-selling the drug to customers, washing it to improve quality, and remitting proceeds totalling approximately $209,000 over a two-month period. She was, in the sentencing judge's characterisation, a "middleman" in the operation.

After spending approximately nine and a half months on remand, the respondent was granted bail in October 2010 on stringent conditions. Those conditions confined her to the small town of Dorrigo, imposed a daily reporting obligation and an overnight curfew, and prevented her from obtaining employment or accessing drug counselling services. By the time of sentencing in January 2012, she had ceased drug use, demonstrated substantial rehabilitation, and was living with her mother.

Judge Tupman in the District Court sentenced the respondent to a total term of three years and four months, structured so that the non-parole period expired on the day sentence was imposed, releasing her immediately to parole. The Crown appealed on the basis that the sentence was manifestly inadequate.

Legal Issues

  • Whether the sentencing judge erred in treating the respondent's bail conditions as a form of quasi-custody and granting a 7.5-month allowance for 15 months on those conditions.
  • Whether the sentencing judge failed to give proper regard to the objective seriousness of the offence.
  • Whether the resulting sentence, particularly the non-parole period, was manifestly inadequate.
  • Whether the Court of Criminal Appeal should exercise its residual discretion not to uphold the Crown's appeal even if error or inadequacy were found.

Decision

Ground 1: Bail conditions as quasi-custody

Courts have accepted that credit may be given for onerous bail conditions, with a discount of approximately 50% of what would be given for equivalent pre-sentence custody having been endorsed in earlier authorities. The determination of the appropriate discount is a discretionary judgment, and an appellate court will only interfere if the kind of error identified in House v The King is established. The Court acknowledged that the sentencing judge's approach was lenient, and Allsop P noted the conditions were not especially rigorous given the respondent's own desire for family support and structured living. However, the sentencing judge had committed no error of fact or law, had not taken into account irrelevant considerations, and the allowance granted did not produce a result that was plainly unjust. Ground 1 was not upheld.

Grounds 2 and 3: Objective seriousness and manifest inadequacy

The Court accepted that the Crown advanced powerful arguments. The non-parole period of approximately nine and a half months (effectively zero additional custody beyond time already served) for a serious commercial drug supply was described by Davies J as "undoubtedly a very lenient one," and by Allsop P as verging on inadequacy. The head sentence of three years and four months was regarded as possibly within range, but the non-parole period fell at or below the lower limit of comparable cases in the statistics. The Court specifically noted the sentence should not be regarded as an adequate indication of the appropriate penalty for equivalent criminality.

Residual discretion

Despite accepting the leniency of the sentence, all three judges declined to uphold the appeal in the exercise of the Court's residual discretion. The sentencing judge had the benefit of seeing and hearing the respondent and her mother give evidence, an advantage the appellate court does not possess. Her Honour had formed a clear and considered view that returning the respondent to custody, even briefly, carried a real risk of undoing demonstrated rehabilitation and of relapse, to the detriment of the community. No specific error of principle was identified in the sentencing judge's reasoning. Davies J concluded that no question of principle was at stake and that the very particular circumstances justified declining to interfere. Allsop P added that the sentencing judge's primary concern with public protection through rehabilitation aligned with the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW), sections 3A(c) and (d).

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that the residual discretion not to uphold a sentence appeal remains available even where a sentence is characterised as verging on inadequacy, provided no specific error of principle is established and the circumstances are sufficiently exceptional.
  • A sentencing court may give credit for onerous bail conditions by analogy with pre-sentence rehabilitation custody, with a discount of up to approximately 50% of the equivalent pre-sentence custody credit endorsed by earlier authority, though the precise allowance remains a discretionary judgment.
  • Appellate courts must give real weight to a sentencing judge's direct assessment of a defendant's remorse and rehabilitation where that assessment is based on the judge seeing and hearing the defendant give evidence, following the principle in Fox v Percy.
  • Where a sentence is structured to avoid returning an offender to custody in order to protect demonstrated rehabilitation, that approach may be consistent with the sentencing purposes in section 3A(c) and (d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even if other sentencing purposes are less fully reflected.
  • The Court of Criminal Appeal made clear that the outcome should not be read as indicating an adequate sentence for offences of equivalent criminality; the dismissal of the appeal was strictly confined to the respondent's exceptional personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Case Conferencing Trial Act 2008

Cases
- BJT v R [2011] NSWCCA 12
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- House v The King (1936) 55 CLR 499
- Hughes v R [2008] NSWCCA 48, (2008) 185 A Crim R 155
- R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1
- R v Douglas (unreported, NSWCCA, 4 March 1997)
- R v Eastaway (unreported, NSWCCA, 19 May 1992)
- R v McHugh (1985) 1 NSWLR 588
- R v Yuksel; R v Sirtlan [2012] NSWCCA 84
- Truss v R [2008] NSWCCA 325