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Court of Criminal Appeal 20 December 2013

Mammone (Pino) v R

[2013] NSWCCA 325

DrugsFirearms & weapons
CRIMINAL LAW PLEA OF GUILTY AGGREGATE SENTENCE SENTENCE NOT PLAINLY UNJUST LEAVE TO APPEAL GRANTED APPEAL ALLOWED IN PART

Citation: Mammone (Pino) v R [2013] NSWCCA 325
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2013
Judge(s): Macfarlan JA, Latham J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to manufacturing a commercial quantity of methylamphetamine and knowingly taking part in the supply of not less than a commercial quantity of the same drug. Three additional offences, possessing drug manufacturing apparatus, possessing an unregistered firearm, and failing to keep a firearm safely, were taken into account on a certificate under s 166 of the Criminal Procedure Act 1986. The charges arose from a police investigation involving covert surveillance of a rural property near Marulan, where recordings captured the applicant's direct involvement in the manufacturing process on multiple occasions in early 2010.

An aggregate sentence of 9 years and 8 months, with a non-parole period of 6 years and 5 months, was imposed by the sentencing judge. The applicant sought leave to appeal, contending that the discount applied for his guilty pleas was inadequate and that the one-month fixed term for possessing an unregistered firearm was manifestly excessive.

  • Whether the sentencing judge applied an appropriate discount for the applicant's pleas of guilty, including whether the utilitarian value of each plea was separately assessed
  • Whether the one-month custodial sentence for possessing an unregistered firearm was manifestly excessive
  • Whether the sentence structure was lawful, given the interaction between s 168(3) of the Criminal Procedure Act 1986 and s 58(1) of the Crimes (Sentencing Procedure) Act 1999, and whether a fixed term for the supply offence was permissible given its status as a standard non-parole period offence

Decision

On the guilty plea discount, the Court found partial error. The sentencing judge had correctly identified the plea to the supply offence as of limited utilitarian value, given that it was entered late and after the ex officio indictment replaced earlier charges. However, the Court held that the discount for the plea to the manufacture offence was insufficient. The utilitarian value of that plea warranted a more generous allowance, and this had not been separately and adequately assessed for each offence.

The Court rejected the manifest excess ground concerning the unregistered firearm. Sentencing statistics showed that only 6% of comparable matters resulted in a custodial penalty, but the one-month term sat at the very bottom of that custodial range. The Court found that the gravamen of the offence lay in the firearm being unregistered and thus capable of circulating in the criminal environment. The applicant had not displaced the sentencing judge's exercise of discretion.

The Court also identified two structural problems with the original sentences. First, a fixed term had been imposed for the supply offence contrary to law, because that offence carries a standard non-parole period and s 45(1) of the Crimes (Sentencing Procedure) Act 1999 does not allow a court to decline to set a non-parole period in such cases. Second, the accumulation of the one-month fixed terms extended the aggregate beyond the five-year limit permitted under the combined effect of s 168(3) of the Criminal Procedure Act 1986 and s 58(1) of the Crimes (Sentencing Procedure) Act 1999. Re-sentencing was required to address both defects and to reflect the increased discount on the manufacture offence.

The Court imposed a revised aggregate sentence using s 53A of the Crimes (Sentencing Procedure) Act 1999, reducing the non-parole period from 6 years and 5 months to 6 years and 1 month.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentences imposed by the District Court quashed
  • In lieu, an aggregate non-parole period of 6 years and 1 month imposed, dating from 10 March 2010 and expiring 9 April 2016, with a balance of term of 3 years expiring 9 April 2019
  • The applicant eligible to be released to parole on 10 April 2016

Key Takeaways

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea must be separately considered for each offence on an indictment, and a failure to do so individually may constitute error warranting intervention.
  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot impose a fixed term (without a non-parole period) for an offence that carries a standard non-parole period. Doing so is contrary to law.
  • Accumulation of fixed terms imposed under s 166 certificates is subject to the five-year limit produced by the combined operation of s 168(3) of the Criminal Procedure Act 1986 and s 58(1) of the Crimes (Sentencing Procedure) Act 1999. Sentences that exceed this limit must be restructured.
  • Sentencing statistics showing low rates of custodial sentences do not, by themselves, establish that a custodial term at the very bottom of that range is manifestly excessive.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is an appropriate mechanism for giving effect to re-sentencing adjustments across multiple offences, including accommodating short fixed terms arising from certificate matters.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45(1), 53A, 58(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 168(3)
- Firearms Act 1966 (NSW)

Cases:
- Collier v R [2012] NSWCCA 213
- Hristovkski v R [2010] NSWCCA 129
- Lipchin v R [2013] NSWCCA 77
- Mammone v R [2013] NSWCCA 95
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- SGJ v R; Ku v R [2008] NSWCCA 258