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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, NSW
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 large commercial quantity of a prohibited drug (heroin and methylamphetamine respectively), each carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. A further heroin supply offence was taken into account on a Form 1 in relation to count 1. The sentencing judge found the appellant had played a very significant organisational role in a drug distribution network operating across the Northern Rivers region of NSW, making approximately 32 trips to supply drugs and collecting money from syndicate members.

Before any discount, the sentencing judge assessed the overall sentence in the range of 27 to 28 years, then applied a 25 per cent discount for the guilty plea to arrive at a total of 20 years. The resulting structure was a fixed term of 15 years on count 1 and a partly cumulative sentence on count 2, producing an aggregate non-parole period of 15 years expiring in August 2023, with a balance of term of 5 years.

The appellant sought leave to appeal out of time (explained by difficulty obtaining a transcript) and raised five grounds of appeal, including errors in imposing a fixed term on a standard non-parole period offence, misapplication of the standard non-parole period following Muldrock, a breach of the rule in Pearce v R, failure to consider special circumstances, and manifest excess.

  • Whether the sentencing judge erred by imposing a fixed term (rather than a sentence with a non-parole period) on count 1, which was a standard non-parole period offence
  • Whether the sentencing judge misapplied the standard non-parole period framework in light of Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge breached the rule in Pearce v R (1998) 194 CLR 610 by determining an overall appropriate sentence first, rather than fixing each individual sentence separately before considering accumulation
  • Whether the sentencing judge erred in failing to find special circumstances to justify a longer parole period
  • Whether the total sentence was manifestly excessive

Decision

The Crown conceded the ground 1 error: under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a court has no power to decline to set a non-parole period for a standard non-parole period offence. McClellan CJ at CL confirmed this by reference to SGJ v R; KU v R [2008] NSWCCA 258. The Court noted some uncertainty in prior decisions about whether correcting such an error requires increasing the sentence (treating the fixed term as equivalent to a non-parole period) or simply restructuring it, and expressly left that question for resolution in a future case.

On the standard non-parole period issue (ground 2), the Court accepted that the sentencing judge's reasons did not reveal the two-stage approach required by Muldrock. Rather than identifying where the offence sat in the range and treating the standard non-parole period as a guidepost in that context, the judge treated it primarily as a matter to be considered among others. This constituted error.

The Court found the Pearce breach in ground 3 was established. The sentencing judge calculated an overall sentence for both offences combined and then worked backwards to assign sentences to individual counts, rather than first determining an appropriate sentence for each count and then considering the extent of accumulation. That reversal of the correct methodology amounted to a legal error. The Court also found the total sentence manifestly excessive in the circumstances, having regard to the subjective features and the applicable sentencing range.

Hulme J, writing separately, examined whether s 45 of the Crimes (Sentencing Procedure) Act permits a court to deliberately reduce an overall sentence by imposing a fixed term rather than including a parole component. He identified significant uncertainty in the case law on this point and concluded the question was best left for an appropriate future case, noting that the answer would also affect how the Court of Criminal Appeal deals with severity appeals where a fixed term has been erroneously imposed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing court has no power under s 45(1) of the Crimes (Sentencing Procedure) Act 1999 to impose a fixed term of imprisonment for a standard non-parole period offence; the Crown conceded this error and the Court of Criminal Appeal confirmed it.
  • The rule in Pearce v R requires a sentencing court to determine an appropriate sentence for each individual offence first, and only then consider the degree of accumulation. Working backwards from a pre-determined overall sentence violates that rule.
  • Following Muldrock v The Queen (2011) 244 CLR 120, the standard non-parole period must function as a statutory guidepost assessed by reference to where the particular offence sits in the range, not merely as one factor among many in a general sentencing exercise.
  • Whether s 45 of the Crimes (Sentencing Procedure) Act permits a court to reduce an otherwise appropriate sentence by deliberately setting a fixed term (thereby eliminating a parole component) remains an open question, expressly reserved by the Court of Criminal Appeal for resolution in a future case.
  • Inconsistency across prior Court of Criminal Appeal decisions on how to correct fixed-term errors in standard non-parole period offences was acknowledged, with some decisions increasing the sentence and others restructuring it without increase.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Sentencing Act 1989 (NSW), s 6

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