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Court of Criminal Appeal 9 October 2013

SPAROS, Luke v R

[2013] NSWCCA 223

Also reported as (2013) 235 A Crim R 462
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: SPAROS, Luke v R [2013] NSWCCA 223
Court: Court of Criminal Appeal, New South Wales
Date: 9 October 2013
Judges: Beazley P, Fullerton J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to two serious drug offences: importing a commercial quantity of cocaine under the Criminal Code Act 1995 (Cth), and supplying not less than a large commercial quantity of cocaine under the Drug Misuse and Trafficking Act 1985 (NSW). At sentencing, both the prosecution and the applicant requested that a further charge (a "Form 1 offence") be taken into account. Under section 33 of the Crimes (Sentencing Procedure) Act 1999, a Form 1 offence is not a separately convicted charge but is listed alongside the principal offence so that the court may take it into account when setting the sentence for that principal offence.

The sentencing judge imposed sentences on both counts with six months of partial accumulation. In structuring that accumulation, the judge referred to the Form 1 offence as militating against full concurrency between the two counts. The applicant was ultimately sentenced to a total of 15 years with a non-parole period of nine years.

The applicant sought leave to appeal, arguing that the sentencing judge had impermissibly used the Form 1 offence twice: once when increasing the sentence for the principal offence, and again when deciding to partially accumulate rather than make the sentences fully concurrent.

  • Whether a Form 1 offence, having already been taken into account in setting the sentence for the principal offence, could be referred to again at the totality or accumulation stage.
  • Whether the criminality disclosed by a Form 1 offence forms part of the "overall criminality" relevant to the totality principle.
  • Whether full concurrency between the import offence and the supply offence was warranted, given the degree of overlap between the two counts.

Decision

All three judges agreed on the final orders, granting leave to appeal but dismissing the appeal. However, Beazley P and Fullerton J diverged from Beech-Jones J on whether the sentencing judge had actually erred in invoking the Form 1 at the accumulation stage.

On the Form 1 and totality (Fullerton J, with Beazley P agreeing): Fullerton J found that the sentencing judge had erred by using the Form 1 offence a second time when determining whether to accumulate sentences. Section 33 empowers a court to take Form 1 offending into account only at the stage of "dealing with the offender for the principal offence," meaning at the point of fixing that sentence. Once that step is complete and a heavier sentence has been imposed to reflect the Form 1 criminality, the court cannot revisit that same offending at the accumulation stage to justify extending the total effective sentence. The criminality relevant to the totality assessment is confined to offences for which the offender has actually been convicted.

On whether the appeal should nonetheless be dismissed: Despite identifying error in the approach, Fullerton J was satisfied under section 6(3) of the Crimes (Sentencing Procedure) Act that a total sentence of 15 years with a nine-year non-parole period was warranted on the indicted offences alone, making the appeal dismissible.

On concurrency versus accumulation (Beech-Jones J): Beech-Jones J held, and Fullerton J agreed, that full concurrency between the import and supply counts was not warranted regardless of the Form 1 issue. Although the drugs involved in both counts substantially overlapped, the supply of cocaine to a named recipient was a discrete act of criminality beyond the mere act of importation. Imposing fully concurrent sentences would have left that separate criminality entirely unaddressed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under section 33 of the Crimes (Sentencing Procedure) Act 1999, Form 1 offending is to be taken into account only at the stage of fixing the sentence for the principal offence. Fullerton J (with Beazley P agreeing) held that it is not available for a second time when the sentencing court considers accumulation or concurrency.
  • The criminality relevant to the totality principle is, on the approach of Fullerton J, confined to offences for which the offender has been convicted. Uncharged offending taken into account via Form 1 does not form part of the "total criminality" pool at the accumulation stage.
  • Where two offences arising from the same factual matrix nonetheless involve distinct criminal acts, partial accumulation may be justified even without reference to any Form 1 offence. Making sentences fully concurrent in such circumstances would leave discrete criminality effectively unpunished.
  • Identified error in the sentencing approach does not automatically result in a successful appeal. Where the overall sentence is independently justifiable on the convicted offences alone, the Court of Criminal Appeal may dismiss the appeal under section 6(3) of the Crimes (Sentencing Procedure) Act.
  • The decision in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, while settling the principled use of Form 1 procedures in calculating individual sentences, did not resolve the distinct question of whether Form 1 criminality could also be used at the totality stage. This decision addresses that gap, at least in the reasoning of the majority on that point.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 6(3)
- Criminal Code Act 1995 (Cth), s 307.1(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW)

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Pearce v R [1998] HCA 57; 194 CLR 610
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
- Blay v The Queen [2006] WASCA 248; 205 FLR 414
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- R v Calcutt [2012] NSWCCA 40
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Dionys [2011] NSWCCA 272
- Attorney General v Tichy (1982) 30 SASR 84