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Court of Criminal Appeal 5 December 2012

Maroun Younes v R

[2012] NSWCCA 259

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ACCUMULATION SPECIAL CIRCUMSTANCES

Citation: Maroun Younes v R [2012] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 5 December 2012
Judge(s): McClellan CJ at CL, Hidden J, Adamson J

Background

The applicant pleaded guilty in the District Court to two offences of supplying a prohibited drug on an ongoing basis under the Drug Misuse and Trafficking Act 1985. Between September and October 2009, he supplied cocaine on 58 occasions (totalling 26.1 grams) and methamphetamine on six occasions (totalling 3 grams), both for financial reward. He was on parole for four firearm possession offences at the time of his arrest in October 2009, and that parole was revoked shortly after his arrest.

The sentencing judge imposed accumulated sentences commencing from the date the earlier firearms sentence expired (30 September 2010), and found special circumstances under the Crimes (Sentencing Procedure) Act 1999, accepting that a longer parole period would enhance the applicant's rehabilitation prospects. Looking at the index sentences alone, the ratio between the non-parole period and the total term was approximately 65%. However, when the 11-month period spent in custody following arrest (but before the index sentences commenced) was included in the calculation, the effective ratio rose to approximately 73%.

The applicant sought leave to appeal, arguing that the sentencing judge had not given practical effect to the finding of special circumstances and had failed to apply the totality principle properly.

  • Whether the accumulation of sentences gave practical effect to the sentencing judge's finding of special circumstances, given that the revocation of the earlier parole effectively increased the ratio between total time in custody and the total term to around 73%.
  • Whether the sentencing judge's exercise of the totality principle miscarried because the facts of the earlier firearms offences were not formally tendered before the court.

Decision

Ground 1: Special circumstances and the effective non-parole ratio

Adamson J (with whom McClellan CJ at CL and Hidden J agreed) held that no error was established. The sentencing judge was plainly aware of the period of pre-sentence custody resulting from the parole revocation. His Honour was entitled to take the view that the applicant's return to custody for breach of parole on an earlier, unrelated offence did not necessarily have to affect the sentence imposed for the index offences.

Hidden J added that, while it would have been open to the sentencing judge to preserve the 65% ratio when accounting for the full period of custody, declining to do so did not constitute error. The proportion reached was clearly intentional, and the effect of accumulation had not been overlooked. The Court also noted that the applicant had not argued at the sentence hearing that the judge should perform the calculation comparing total custody to total term, and could not now rely on the numerical consequence of a calculation he had not requested: Edwards v R [2009] NSWCCA 199.

Ground 2: Totality principle and the facts of the prior offences

The Court rejected the second ground on multiple bases. The applicant had not sought to tender the facts of the firearms offences at the sentencing hearing, had not submitted that the judge could not sentence properly without that material, and had not identified any relevant matter omitted from the criminal antecedent report that was before the court. Furthermore, the sentencing judge had not treated the commission of the index offences while on parole as an aggravating factor, and had not increased the index sentences by reference to the earlier offences. The judge's approach of commencing the index sentences after the expiry of the earlier sentence avoided double punishment, not an error of principle.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the applicant was directed to be released to parole on the expiration of the non-parole period on 16 January 2013.

Key Takeaways

  • A sentencing judge who finds special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 is not required to apply a fixed ratio between the non-parole period and the total term; the finding creates a discretion, and the proportion ultimately reached will not constitute error simply because a marginally lower ratio was available.
  • Where an applicant was on parole for an earlier, unrelated offence that was revoked upon arrest for index offences, the sentencing court is entitled to treat the pre-sentence custody arising from that revocation as separate from the determination of appropriate sentences for the index offences.
  • No error arose from the sentencing judge's limited knowledge of the earlier firearms offences, where the applicant had not sought to tender that material and identified no specific gap in the information before the court.
  • In dismissing the appeal, the Court confirmed the principle from Edwards v R that an applicant cannot, on appeal, rely on a calculation that was not submitted to or requested of the sentencing court.
  • The approach of commencing index sentences after expiry of an earlier sentence, rather than backdating them, properly avoids subjecting an offender to double punishment for prior offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1)-(3), 50
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases:
- Callaghan v R [2006] NSWCCA 111
- Edwards v R [2009] NSWCCA 199