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Court of Criminal Appeal 9 March 2012

Llavallol v R

[2012] NSWCCA 29

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED LEAVE UPHELD SENTENCE QUASHED

Citation: Llavallol v R [2012] NSWCCA 29
Court: Court of Criminal Appeal, NSW
Date: 9 March 2012
Judges: Basten JA, RS Hulme J (dissenting), Schmidt J

Background

The appellant was found in possession of 3.21 grams of heroin near Kings Cross in May 2010, along with $2,850 in cash and two mobile phones. The quantity was just above the trafficable amount under the Drug Misuse and Trafficking Act 1985 (NSW) but well below the indictable quantity of 5.0 grams. The Crown elected to proceed on indictment in the District Court rather than summarily in the Local Court.

The appellant pleaded guilty at the earliest opportunity and was sentenced by Freeman DCJ to a total of two years' imprisonment, comprising a non-parole period of one year and three months and a balance of term of nine months.

The appellant sought leave to appeal, arguing that the sentencing judge made two errors: failing to apply the guilty plea discount scheme under the Criminal Case Conferencing Trial Act 2008 (NSW), and failing to consider that the offence could have been dealt with in the Local Court.

  • Whether the sentencing judge erred by failing to comply with ss 16 and 17 of the Criminal Case Conferencing Trial Act 2008, which require the court to specify the discount applied for a guilty plea and to record the penalty it would otherwise have imposed.
  • Whether the sentencing judge erred by failing to take into account that the offence, involving a quantity below the indictable threshold, could have been dealt with summarily in the Local Court.

Decision

On the guilty plea discount: The Court (by majority) held that the sentencing judge did not comply with the Criminal Case Conferencing Trial Act 2008. Sections 16 and 17 of that Act require the court to indicate to the offender and record both the discount applied and the penalty that would have been imposed but for the plea. The judge acknowledged the plea and noted remorse, but made no express finding that a 25% discount was applied. Given that neither party drew the judge's attention to the statutory obligation, the majority inferred the provision was not in mind at sentencing. This non-compliance constituted error.

On the Local Court jurisdiction: The majority also held that the sentencing judge erred by failing to consider whether the offence could properly have been dealt with in the Local Court. While a prosecutor's election to proceed on indictment is not reviewable by the sentencing court, the court is required to consider whether the case could have been appropriately disposed of summarily and to have regard to the Local Court's sentencing range, even though that range does not cap the District Court's jurisdiction. No such consideration appeared in the judge's reasons. RS Hulme J dissented on this ground, concluding that the circumstances, including the packaging of drugs into individual deals, the cash, and the Form 1 offence, made the District Court the only appropriate forum.

On re-sentencing: The majority quashed the original sentence. Taking into account the mandatory 25% discount for the early plea, the Form 1 offence, the appellant's personal circumstances, and the view that this matter could properly have been disposed of in the Local Court, Schmidt J (with Basten JA agreeing) determined that an appropriate sentence was 18 months' imprisonment, comprised of a non-parole period of 13 months and a balance of term of five months.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentence quashed.
  • Appellant re-sentenced to a non-parole period of 13 months commencing 11 February 2011 and expiring 10 March 2012, with a balance of term of 5 months expiring 10 August 2012.
  • Appellant directed to be released on parole subject to standard conditions.

Key Takeaways

  • Under the Criminal Case Conferencing Trial Act 2008, a sentencing court is required to expressly indicate to the offender and record both the penalty it would have imposed but for a guilty plea and the discount applied. An implied or inferential discount is insufficient to satisfy that obligation.
  • Where a drug offence involves a quantity below the indictable threshold, a sentencing court must consider whether the matter could properly have been dealt with in the Local Court and take that court's sentencing range into account, even though that range does not limit the District Court's jurisdiction.
  • A prosecutor's decision to elect to proceed on indictment is not open to review by the sentencing judge, but the judge's failure to engage separately with the question of Local Court suitability is a reviewable error.
  • Non-compliance with the Criminal Case Conferencing Trial Act 2008 was noted by the Court of Criminal Appeal to be a recurring problem, attributed in part to the Act's geographically limited operation and its restricted period of original application.
  • RS Hulme J dissented, taking the view that the nature and circumstances of the offending, including the packaging of 24 individual drug deals and the substantial cash proceeds, made the District Court the appropriate venue and warranted the original sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 31(1)(c), Sch 1
- Criminal Case Conferencing Trial Act 2008 (NSW), ss 5, 16, 17, Part 3, Part 4
- Criminal Case Conferencing Trial Regulation 2008 (NSW), cl 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 86(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Crombie [1999] NSWCCA 297
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Do v R [2010] NSWCCA 182
- Greer v R [2011] NSWCCA 40
- LJ v Regina [2010] NSWCCA 289
- Bonwick v R [2010] NSWCCA 177
- R v Henry [1999] NSWCCA 111; (1999) NSWLR 346
- R v Markarian [2003] NSWCCA 8
- R v El Masri [2005] NSWCCA 167