AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 23 April 2012

R v DW

[2012] NSWCCA 66

Also reported as (2012) 221 A Crim R 63
DrugsFirearms & weapons
CRIMINAL LAW PROSECUTION APPEAL RELEVANCE OF PROXIMITY TO RELEASE PROSECUTION APPEAL SENTENCING ACCUMULATION

Citation: R v DW [2012] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 23 April 2012
Judges: Basten JA; RS Hulme J; Hall J

Background

The respondent was sentenced in the District Court at Parramatta in December 2010 for three offences: possessing a prohibited pistol, selling a prohibited firearm, and conspiring to manufacture amphetamine in a large commercial quantity. The sentencing judge imposed a total effective sentence of approximately four years and eight months, with significant backdating and a substantial discount for assistance provided to authorities and a guilty plea.

The Director of Public Prosecutions appealed, contending that the sentence for the drug conspiracy was manifestly inadequate and that the overall sentencing was affected by multiple errors. These alleged errors included an incorrect commencement date, an erroneous starting point, double-counting of subjective factors, a transposition of sentences for the two firearms offences in terms of relative seriousness, and inadequate accumulation.

By the time the appeal was heard and determined, the respondent was within six months of completing his mandatory custodial term. The proceedings had been prolonged significantly by the Director's failure to place adequate material before the Court at the outset, including information about prior sentences and the extent of the respondent's assistance to authorities.

  • Whether the sentence for conspiracy to manufacture a large commercial quantity of amphetamine was manifestly inadequate
  • Whether the sentencing judge erred in the commencement date, starting point, and degree of accumulation of the sentences
  • Whether the judge erred in transposing the relative severity of the firearms sentences
  • Whether the judge erred in treating the involvement of an undercover officer or informant as reducing the objective gravity of the offending
  • Whether assistance to authorities can properly serve both as a discount and as a "special circumstance" justifying a longer parole period under s 44 of the Crimes (Sentencing Procedure) Act
  • Whether, even if error were established, the Court should exercise its residual discretion to decline to intervene given the lapse of time and proximity to the respondent's release
  • Whether the Director's post-hearing tender of evidence contradicting the respondent's account of prison conditions was procedurally proper

Decision

The Court identified several errors in the sentencing below. The sentencing judge used an incorrect commencement date by backdating the first sentence to the arrest date rather than to the end of a revoked parole period relating to a prior offence. The judge also erred in treating the respondent's contact with an undercover officer as a factor that considerably reduced the objective gravity of the offending, and in selecting eight years as the starting point for the conspiracy count. The Court further found an error in the relative severity assigned to the two firearms offences.

On the question of whether assistance to authorities could function both as a discount and as a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act, Basten JA expressed reservations about double use of the same factor, and all members of the Court noted the issue. The Court found that using assistance as a basis for an extended non-parole period while also applying it as a discount to the head sentence risked impermissible double-counting.

Despite those identified errors, the Court held that the overall sentence, although lenient, was not so lenient as to warrant intervention. RS Hulme J calculated that a corrected sentence would have been less than approximately one year and four months longer than the sentence actually imposed. That margin, while real, was insufficient to cross the threshold justifying appellate resentencing in a prosecution appeal, particularly in circumstances where the Director had failed to supply adequate information to the Court at the outset.

The Court also addressed the Director's late tender of affidavit material, filed after the hearing purportedly to contradict the respondent's evidence about harsh prison conditions. The Court expressed clear disapproval of this conduct. The affidavit had been filed without leave and the Director had not challenged the respondent's evidence at the hearing when the opportunity was available. The Court noted that the Director bears a responsibility to assist the Court fully and promptly, including in relation to the consequences of an offender's cooperation with authorities.

Orders Made

• The appeal should be dismissed

Key Takeaways

  • A prosecution sentencing appeal will be dismissed even where multiple sentencing errors are identified, if the cumulative effect of those errors does not render the overall sentence sufficiently inadequate to warrant appellate resentencing.
  • Treating an offender's assistance to authorities as both a percentage discount on the head sentence and as a special circumstance justifying an extended parole period under s 44 of the Crimes (Sentencing Procedure) Act risks impermissible double-counting of the same mitigating factor.
  • In dismissing the appeal, the Court emphasised that the Director bears ongoing responsibility to place all relevant material before the Court promptly, including details of prior sentences, benefits already obtained, and the extent of an offender's cooperation with authorities.
  • Filing affidavit evidence after the conclusion of a hearing, without leave, to contradict an offender's unchallenged evidence about prison conditions was treated as procedurally improper and contrary to the Director's obligations to the Court.
  • Where a sentence has been substantially backdated and the respondent is nearing the end of mandatory custody, the lapse of time since sentencing is a relevant consideration in the exercise of the Court's residual discretion to decline intervention on a prosecution appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
- Criminal Appeal Act 1912 (NSW), ss 5D, 5DA
- Drug Misuse and Trafficking Act 1985 (NSW), s 26
- Firearms Act 1996 (NSW), ss 7, 51

Cases:
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- R v AD [2008] NSWCCA 289; 191 A Crim R 409
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 283 ALR 1
- Griffiths v The Queen [1989] HCA 39; 167 CLR 372
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Regina v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151
- R v Cartwright (1989) 17 NSWLR 243