Citation: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Court: Court of Criminal Appeal, NSW
Date: 22 May 2013
Judges: Bathurst CJ, Basten JA, Hoeben CJ at CL, Garling J, Campbell J
Background
Four applicants pleaded guilty to offences involving the supply of commercial quantities of prohibited drugs (primarily methylamphetamine) and knowingly dealing with the proceeds of drug supply. The offences related to six separate transactions. Each applicant was sentenced in the District Court, and each sought leave to appeal against sentence.
At sentencing, additional uncharged offences were placed before the court on a "Form 1" under the Crimes (Sentencing Procedure) Act 1999 (NSW). The Form 1 procedure allows an offender to ask the court to take into account further offences for which the offender has been charged but not convicted, with the effect that no further proceedings can be brought in respect of those additional matters. The sentencing judge increased the sentence for the principal offence to reflect the criminality involved in the Form 1 matters.
The applicants challenged their sentences on several grounds, including whether the Form 1 procedure was correctly applied, whether the sentences lacked parity between co-offenders, and whether the sentences were manifestly excessive.
Legal Issues
- Whether a sentencing court can increase the sentence for the principal offence to account for the criminality in Form 1 offences, or whether doing so amounts to sentencing the offender for offences not charged on the indictment
- Whether the sentences imposed on the applicants were disproportionate relative to co-offenders (the parity principle)
- Whether any of the sentences were manifestly excessive
- Whether appropriate discounts were given for assistance provided to authorities
Decision
Form 1 procedure: The Court confirmed the approach established in Attorney General's Application No 1 of 2002, namely that the Form 1 procedure does permit a sentencing court to impose a longer sentence for the principal offence than it would have imposed had the Form 1 offences not been taken into account. The majority held that taking the Form 1 offences into account necessarily requires assessing the criminality involved in those further offences, and that criminality can have a significant effect on the sentence for the principal offence. The constraint is that the penalty for the principal offence cannot exceed the maximum penalty available for that offence, and the range of permissible effects is not unlimited.
The Court rejected the argument that considering Form 1 criminality amounted to sentencing for uncharged offences in a way that breached the principles in De Simoni and related authority. The purpose of the Form 1 procedure includes giving the offender a "clean slate" in respect of the additional matters, but that benefit may come at the cost of an increased sentence for the principal offence.
Parity: The Court considered each applicant's parity arguments individually. Where sentencing outcomes for co-offenders differed, the Court examined whether those differences were justified by differences in criminality, role, or other relevant factors. In some instances the Court found a justifiable basis for the disparity; in others it found that the disparity gave rise to a justifiable sense of grievance.
Manifestly excessive and other grounds: The Court examined each applicant's sentence individually against the objective seriousness of the offending and the relevant personal circumstances. Where error was established, the Court re-sentenced; where no error was identified, the applications were refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court taking Form 1 offences into account may lawfully impose a longer sentence for the principal offence than it would have imposed had those further offences not been taken into account, provided the sentence does not exceed the maximum available for the principal offence.
- Under the Form 1 procedure, some assessment of the criminality involved in the further offences is unavoidable; where that criminality is significant, the effect on the sentence for the principal offence can itself be "substantial."
- The Form 1 mechanism serves a dual purpose: it provides the offender with a clean slate against future prosecution for the listed matters, but may impose a corresponding cost in the form of an increased sentence for the principal offence.
- Parity between co-offenders remains a live consideration in multi-accused sentencing proceedings; differences in sentence must be explicable by reference to relevant distinctions in role, culpability, or personal circumstances.
- No error is established simply because a sentencing judge refers to the community's entitlement to retribution in the context of Form 1 offences, provided retribution is extracted only in respect of the principal offence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 35
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 93T(1)
- Crimes Act 1914 (Cth)
- Criminal Procedure Act 1986 (NSW)
Cases
- 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
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
- Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280
- R v Calcutt [2012] NSWCCA 40
- Einfeld v R [2010] NSWCCA 87
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Markarin v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v AEM Senior [2002] NSWCCA 58
- Giles v Director of Public Prosecutions [2009] NSWCCA 308