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Court of Criminal Appeal 26 June 2013

R v Grover; Grover v R

[2013] NSWCCA 149

DrugsFraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE APPEAL CROWN APPEAL AND APPEAL BY APPLICANT ADEQUACY OF SENTENCES NEED TO RE SENTENCE.

Citation: R v Grover; Grover v R [2013] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 26 June 2013
Judges: Hoeben CJ at CL (with Fullerton J and McCallum J agreeing)

Background

The respondent pleaded guilty in the District Court to a large number of serious offences committed between February and December 2010. The offences centred on a systematic campaign of breaking into pharmacies to steal pseudoephedrine-based cold and flu products, which are used in the manufacture of methylamphetamine. The offending included two counts of aggravated break, enter and steal; one attempted aggravated break, enter and steal; four counts of break, enter and steal; one deemed supply of a prohibited drug; and three offences involving the use of false documents to obtain property. A further 19 related offences were taken into account on a Form 1 (a procedure under s 32 of the Crimes (Sentencing Procedure) Act 1999 that allows additional offences to be considered at sentencing without separate conviction).

Acting Judge Puckeridge in the District Court sentenced the respondent on 14 September 2012 to a total head sentence of 4 years and 8 months, with a non-parole period of 3 years and 11 months.

The matter came before the Court of Criminal Appeal on two applications heard together: a Crown appeal under s 5D of the Criminal Appeal Act 1912 contending the sentences were manifestly inadequate and affected by legal error, and a respondent's application for leave to appeal on the basis that certain aspects of the sentencing were erroneous and the overall sentence was too severe.

  • Whether the sentencing judge erred by failing to treat offending while on conditional liberty as an aggravating factor
  • Whether the Form 1 matters were properly dealt with at sentencing
  • Whether the sentencing judge's approach to constructing aggregate sentences was correct
  • Whether proper effect was given to a finding of special circumstances (which allows the ratio of non-parole period to total sentence to be adjusted)
  • Whether the sentences, individually and in their overall structure, were manifestly inadequate
  • Whether the deemed supply charge was affected by error due to the absence of a nominated quantity of pseudoephedrine
  • Whether the sentences for the false instrument offences were individually excessive

Decision

Hoeben CJ at CL (with Fullerton J and McCallum J agreeing) allowed the Crown appeal and dismissed the respondent's appeal. The court found multiple errors in the sentencing judge's approach sufficient to warrant re-sentencing.

On the Crown's grounds, the court found error in the sentencing judge's handling of the Form 1 matters and in the construction of the aggregate sentences. The court also identified error in the treatment of the respondent's prior record and in giving proper effect to the finding of special circumstances. These errors, taken together, meant the original sentences could not stand.

On the respondent's grounds, the court rejected the argument that the deemed supply charge was vitiated by the absence of a specified quantity of pseudoephedrine. The court also rejected the contention that the individual sentences for the false instrument offences were excessive. Leave to appeal was granted to the respondent, but the appeal itself was dismissed.

The court proceeded to re-sentence the respondent. The restructured sentences were more severe in overall terms than those originally imposed, reflecting the errors identified in the Crown appeal. The lead offence, aggravated break, enter and steal at Carrs Park Chemist (to which the Form 1 matters were attached), attracted a non-parole period of 3 years with a balance of term of 2 years and 3 months. Sentences for the remaining offences were cascaded with staggered commencement dates, producing a total period of imprisonment running from 16 July 2011 through to 15 October 2018.

Orders Made

  • Crown appeal allowed
  • Leave to appeal granted to the respondent; respondent's appeal dismissed
  • Sentences imposed by Puckeridge ADCJ on 14 September 2012 quashed
  • In lieu thereof, the respondent re-sentenced as follows:
  • Supply prohibited drug: fixed term of 12 months, commencing 16 July 2011, expiring 15 July 2012
  • Break, enter and steal (Harbord Pharmacy): NPP 2 years from 16 October 2011, balance of term 1 year, expiring 15 October 2014
  • Break, enter and steal (Merrylands): NPP 2 years from 16 January 2012, balance of term 1 year, expiring 15 January 2015
  • Break, enter and steal (Mulgoa Pharmacy): NPP 2 years from 16 April 2012, balance of term 1 year, expiring 15 April 2015
  • Break, enter and steal (Werrington): NPP 2 years from 16 July 2012, balance of term 1 year, expiring 15 July 2015
  • Aggravated break, enter and steal (Caringbah Chemist): NPP 2 years 6 months from 16 January 2013, balance of term 1 year 6 months, expiring 15 January 2017
  • Attempted aggravated break, enter and steal (Miranda): NPP 2 years 6 months from 16 April 2013, balance of term 1 year 6 months, expiring 15 April 2017
  • Aggravated break, enter and steal (Carrs Park Chemist, lead offence with Form 1 matters): NPP 3 years from 16 July 2013, balance of term 2 years 3 months, expiring 15 October 2018
  • Attempt to use false instrument (Claremont Meadows): fixed term 12 months from 16 April 2012
  • Use false instrument (Plumpton, Seq 6): fixed term 12 months from 16 April 2013
  • Use false instrument (Plumpton, Seq 27): fixed term 12 months from 16 April 2014

Key Takeaways

  • Multiple concurrent errors in a sentencing judge's approach to Form 1 matters, aggregate sentence construction, prior record, and special circumstances findings can collectively necessitate re-sentencing by the Court of Criminal Appeal, even where no single error alone might have been sufficient to disturb the original orders.
  • Where a finding of special circumstances is made, the sentencing court must give that finding meaningful effect in the structure of the sentences imposed; a failure to do so constitutes legal error.
  • A deemed supply charge under the Drug Misuse and Trafficking Act 1985 is not rendered invalid at sentencing simply because no specific quantity of the prohibited drug has been nominated; the Court of Criminal Appeal rejected that submission on the facts of this case.
  • Under s 32 of the Crimes (Sentencing Procedure) Act 1999, Form 1 offences must be dealt with in a manner that properly reflects their weight at sentencing; errors in that process are grounds for appellate intervention.
  • In allowing a Crown appeal and re-sentencing, the Court of Criminal Appeal restructured the sentences with staggered commencement dates across eleven separate terms, producing a significantly longer effective custodial period than the original aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 113(1), 195(1)(a), 254(b)(i)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 37
- Criminal Appeal Act 1912 (NSW), ss 5D, 26
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Attorney General's Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
- Everett and Phillips v R