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53
Court of Criminal Appeal 4 October 2012

Collier v R

[2012] NSWCCA 213

Drugs
CRIMINAL LAW APPEAL SENTENCE PAROLE PERIOD IN RESPECT OF COUNT 1 PAROLE PERIOD RULE IN PEARCE V R BREACHED

Citation: Collier v R [2012] NSWCCA 213
Court: Court of Criminal Appeal
Date: 4 October 2012
Judge(s): McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The appellant pleaded guilty in the District Court to two counts of supplying a prohibited drug in a large commercial quantity, one involving heroin and one involving methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. A separate earlier supply of heroin was taken into account on a Form 1 (a document that allows additional related offences to be considered at sentencing without separate conviction). The offending related to a significant criminal enterprise operating in the Northern Rivers area of New South Wales, and the sentencing judge found the appellant held a senior organisational role within it.

At first instance, the sentencing judge imposed a fixed term of 15 years on count 1 and a non-parole period of 10 years with an additional term of 5 years on count 2, producing an aggregate non-parole period of 15 years and a balance of term of 5 years. The application for leave to appeal was lodged out of time, but the Court accepted the explanation and granted leave.

Legal Issues

  • Whether the sentencing judge erred by failing to set a non-parole period on count 1, a standard non-parole period offence
  • Whether the sentencing judge misapplied the standard non-parole period framework following Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge breached the rule in Pearce v R (1998) 194 CLR 610 by determining the overall sentence before the individual sentences, and whether the degree of accumulation was excessive
  • Whether the sentencing judge erred in failing to consider or find special circumstances
  • Whether the sentences were manifestly excessive

Decision

Ground 1: Failure to impose a non-parole period on count 1
The Crown conceded this error. Section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to decline to set a non-parole period, does not apply to standard non-parole period offences. Because this error, together with other errors identified below, necessitated resentencing, the Court did not need to resolve the separate question of whether the overall term could or should be increased when correcting such an error on a severity appeal. R A Hulme J wrote separately to note the Court's inconsistent treatment of this issue across numerous cases and to flag it for resolution in a future appropriate case.

Ground 2: Standard non-parole period and Muldrock
The Court rejected this ground. Although the sentencing judge used language associated with the pre-Muldrock two-stage approach, McClellan CJ at CL was not persuaded that the judge treated the standard non-parole period as anything other than one of several relevant considerations, as Muldrock requires.

Ground 3: Breach of Pearce v R and excessive accumulation
The Court upheld both sub-grounds. The sentencing judge's remarks revealed that he determined the appropriate overall sentence first and then constructed individual sentences to reach that total. Pearce requires the reverse: a court must first fix the appropriate sentence for each individual count and then determine the degree of concurrency or accumulation. The Court also found the five-year accumulation period was excessive in the circumstances, though some real and significant accumulation was appropriate given the legislature had created separate offences for different drug types.

Ground 4: Special circumstances
The Court dismissed this ground. A finding of special circumstances is relevant to departing from the statutory ratio between the non-parole period and the total sentence, not an independent source of leniency. McClellan CJ at CL reiterated reservations he had expressed in R v Clark about whether a first time in custody, without more, can constitute special circumstances. The Court noted the sentencing judge had implicitly addressed the issue and found no basis to depart from the statutory ratio on that ground, though special circumstances were ultimately found by the Court of Criminal Appeal for a different reason: the need to preserve the statutory ratio across the restructured aggregate sentence.

Ground 5: Manifest excess
On resentencing, the Court reduced the overall sentence. The offending was serious, reflecting a high-level role in a sophisticated criminal enterprise engaged in supply for profit, with no mitigating psychological or addiction-related factors. However, when the correct Pearce methodology was applied and the degree of accumulation reduced from five years to three years, a lesser overall sentence resulted.

Orders Made

  • Leave to appeal granted
  • Appeal upheld; sentence imposed in the District Court quashed
  • Count 2: non-parole period of 9 years commencing 23 August 2008, expiring 22 August 2017, with an additional term of 3 years expiring 22 August 2020
  • Count 1 (including the Form 1 matter): non-parole period of 10 years and 6 months commencing 23 August 2011, expiring 22 February 2022, with an additional term of 4 years and 6 months expiring 22 August 2026
  • Aggregate non-parole period: 13 years and 6 months, with an additional term of 4 years and 6 months

Key Takeaways

  • Section 45(1) of the Crimes (Sentencing Procedure) Act 1999 does not permit a court to decline to set a non-parole period for a standard non-parole period offence; imposing a fixed term for such an offence is a legal error.
  • Under the rule in Pearce v R, a sentencing court must fix the appropriate sentence for each individual count first and only then determine the extent of concurrency or accumulation; working backwards from a predetermined overall figure is a distinct and appealable error.
  • R A Hulme J identified significant inconsistency in the Court of Criminal Appeal's own approach to correcting fixed-term errors on severity appeals, specifically whether the Court can or should increase the overall sentence when a fixed term has been wrongly imposed, and expressly left that question for a future case.
  • A finding of special circumstances relates specifically to whether to depart from the statutory ratio between the non-parole period and the total sentence; it is not a free-standing mechanism for further reduction of a sentence, and first-time custody alone is unlikely to justify such a finding.
  • Where separate offences cover different drug types arising from the same criminal enterprise, some real accumulation of sentences may be appropriate to reflect the distinct criminality involved in each count, but the degree of accumulation remains subject to the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
- Sentencing Act 1989

Cases
- Amacha v R; R v Amacha [2010] NSWCCA 180
- KAF v R [2009] NSWCCA 184
- KC v R [2009] NSWCCA 110
- Leddin v R [2008] NSWCCA 242
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Attallah [2005] NSWCCA 277
- R v Clark [2009] NSWCCA 49
- R v Close (1992) 31 NSWLR 743
- R v Donovan (Court of Criminal Appeal, 9 September 1992, unreported)
- R v Dunn [2004] NSWCCA 346
- R v Fidow [2004] NSWCCA 172
- R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47
- R v Laalaa [2009] NSWCCA 250
- R v Paxton [2011] NSWCCA 242
- R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unreported)
- R v Thomas (1992) 65 A Crim R 269
- R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340
- Russell v R [2010] NSWCCA 248
- SGJ v R; KU v R [2008] NSWCCA 258
- Smaragdis v R [2010] NSWCCA 276