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Court of Criminal Appeal 29 August 2012

Spaliviero v R

[2012] NSWCCA 189

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DISCOUNT APPLICABLE TO SENTENCE

Citation: Spaliviero v R [2012] NSWCCA 189
Court: Court of Criminal Appeal, New South Wales
Date: 29 August 2012
Judge(s): Simpson J, Hislop J, Latham J (all agreeing)

Background

The applicant pleaded guilty to knowingly taking part in the manufacture of a large commercial quantity of MDMA (ecstasy), an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Three related offences of manufacturing methylamphetamine were taken into account on a Form One. The plea came approximately three and a half years after arrest, and a lengthy hearing was required before the parties settled an agreed statement of facts.

The offending centred on a large clandestine drug laboratory discovered at a factory unit in Riverstone in November 2005, following a fire. More than 50 kilograms of high-purity MDMA was located at the site. The applicant had played a crucial operational role: procuring chemicals under false names, purchasing specialised equipment, and carrying out the physical manufacturing work. His DNA was matched to items found inside the laboratory. He had also been convicted of a drug conspiracy offence in 1993 and was on bail for a Victorian drug offence at the time of the principal offending.

At first instance, Blackmore SC DCJ imposed a total sentence of 16 years and 3 months with a non-parole period of 12 years. The applicant was given a combined discount of 30 percent (comprising 12.5 percent for the guilty plea and 17.5 percent for assistance, including 10 percent for future assistance) and a further 5 percent for his psychiatric condition. The applicant sought leave to appeal, contending that the sentencing judge had erred in both of those latter respects.

  • Whether the sentencing judge erred in the approach taken to the applicant's mental disorder (bipolar affective disorder), specifically whether the 5 percent discount adequately reflected its relevance to the offending
  • Whether the sentencing judge erred in the approach taken to the applicant's assistance to authorities, including the weight given to future assistance

Decision

Ground 1: Mental illness
Psychiatric evidence from two experts was before the sentencing judge. Both agreed the applicant suffered from bipolar affective disorder. One psychiatrist formed the opinion that the condition had been present for many years, that the applicant had self-medicated with amphetamines during depressive phases, and that the disorder was operative during the offending period. The Court of Criminal Appeal found that the sentencing judge had not adequately engaged with the causal connection between the applicant's psychiatric condition and his offending. The 5 percent allowance was found to be insufficient in light of the evidence, and this constituted an error warranting intervention.

Ground 2: Assistance
The Court's reasons on the assistance ground are not fully extracted in the available text, but the appeal succeeded. The overall discount structure, including the credit for future assistance, was scrutinised in the context of the combined discount of 30 percent awarded at first instance.

Fresh evidence on appeal
The Court received fresh material concerning the applicant's psychiatric treatment in custody at Cooma Correctional Centre. While the Court acknowledged the treatment was not optimal, it noted there was no evidence of deterioration and that his condition remained amenable to medication. The fresh material reinforced rather than undermined the relevance of the bipolar disorder to the sentencing exercise.

Resentencing
Despite finding error, the Court was careful not to impose a sentence that failed to reflect the objective gravity of the offending. It took account of the sophisticated manufacturing operation, the applicant's central role, the quantity and quality of the drug produced, the commission of the offence while on bail, and the four separate manufacturing enterprises spanning two years. The Court reduced the non-parole period from 12 years to 11 years, with the balance of term adjusted accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Blackmore SC DCJ on 3 December 2010 quashed
  • In lieu, and taking into account the Form One offences: non-parole period of 11 years, commencing 26 October 2006 and expiring 25 October 2017, with a balance of term of 4 years expiring 25 October 2021
  • Applicant eligible for release on 26 October 2017

Key Takeaways

  • A sentencing judge's failure to adequately engage with the causal connection between a diagnosed psychiatric condition and the commission of an offence can constitute appellable error, even where some discount for that condition is given.
  • Bipolar affective disorder, where supported by expert psychiatric evidence and shown to have contributed to offending behaviour (including through substance dependence as a form of self-medication), is capable of attracting a meaningful reduction in sentence beyond a token allowance.
  • The Court of Criminal Appeal confirmed that a lesser sentence warranted by error at first instance must nonetheless remain proportionate to the objective gravity of the offence; reducing a non-parole period on psychiatric grounds does not override the need for the sentence to reflect the seriousness of large-scale commercial drug manufacture.
  • Fresh psychiatric evidence, received on appeal, can inform resentencing even where it does not dramatically alter the picture established at first instance.
  • Where an applicant's guilty plea arrives very late (here, more than three years after arrest), and a contested hearing was required to settle the facts, the discount attributed to the plea is likely to be modest, as reflected in the 12.5 percent allowed in this case.

Legislation and Cases Referenced

Cases cited:
- R v Wright (1997) 93 A Crim R 48
- R v Z [2006] NSWCCA 342; 167 A Crim R 436
- Markarian v R [2005] HCA 25; 215 ALR 213
- R v Baxter [2007] NSWCCA 237
- R v Israil [2002] NSWCCA 255
- R v Sukkar (2006) 172 A Crim R 151
- FS v The Queen [2009] NSWCCA 301
- R v Totten [2003] NSWCCA 207

Legislation: No specific legislation was identified in the provided text, though the offence relates to the manufacture of a large commercial quantity of a prohibited drug under the applicable NSW drug offences framework, with a maximum penalty of life imprisonment and a standard non-parole period of 15 years.