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9
Court of Criminal Appeal 7 March 2013

Brown v R

[2013] NSWCCA 44

Also reported as (2013) 228 A Crim R 298
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUGS QUASI CUSTODY

Citation: Brown v R [2013] NSWCCA 44
Court: Court of Criminal Appeal, New South Wales
Date: 7 March 2013
Judge(s): Bathurst CJ, Fullerton J, Beech-Jones J

Background

The appellant was found in possession of 16.4 grams of methylamphetamine at a Newcastle motel, along with cash, cannabis, drug paraphernalia and a list of names and numbers consistent with drug supply. He was arrested and remanded in custody before being released to bail on the condition that he enter and remain in residential drug rehabilitation programs.

The appellant spent a total of 257 days across two residential rehabilitation centres: the Bennelong Haven Rehabilitation Centre at Kempsey (105 days) and the ACADD Facility in Newcastle (152 days). He then transitioned to a community-based program for a further 120 days before sentence. Both facilities operated strict regimes including curfews, supervised drug testing, restrictions on movement, and structured program attendance.

At sentence, the District Court imposed a non-parole period of 2 years and 6 months (after a 25 per cent guilty plea discount and a finding of special circumstances). The sentencing judge declined to credit the time spent in residential rehabilitation as "quasi-custody," concluding that the facilities did not sufficiently resemble a prison environment. The appellant sought leave to appeal that finding.

  • Whether the sentencing judge erred by failing to apply a discount for time spent in residential rehabilitation programs on the basis that it constituted quasi-custody
  • Whether the sentencing judge erred by failing to take into account the appellant's mental health condition (this ground was not pressed at the appeal)

Decision

The Crown conceded error on both grounds, acknowledging that the sentencing judge had failed to account for the time spent in both residential facilities. In light of that concession, the Court of Criminal Appeal proceeded directly to re-sentence the appellant.

Fullerton J reviewed the established line of authority on quasi-custody, including the principles drawn from cases such as R v Campbell, R v Marschall, and Renshaw v R. Her Honour confirmed that a sentencing court is not required to find that a rehabilitation facility is equivalent to a prison environment before granting a discount. The appropriate question is whether the conditions of the program were sufficiently restrictive to warrant recognition in the sentencing exercise. The extent of any credit depends on all the circumstances, including the nature of the program and the benefit the offender derived from it.

Fullerton J was satisfied that the appellant's participation was exemplary: he completed both residential programs without breach over 257 days, transitioned successfully to a community program, and demonstrated genuine determination to address the drug use underlying his offending. Her Honour concluded he was entitled to a discount at the top of the available range, and adopted the methodology from R v McHugh of backdating the commencement of the sentence rather than reducing its length, so that the sentence continued to reflect the objective seriousness of the offence.

Orders Made

  • Leave to appeal against the sentence imposed on 17 August 2012 was granted
  • The appeal was allowed
  • The non-parole period of 2 years and 6 months was varied to commence on 26 November 2011 and expire on 25 May 2014, with all other sentencing orders confirmed

Key Takeaways

  • A residential rehabilitation facility does not need to replicate a prison environment to qualify for quasi-custody recognition; the relevant question is whether the conditions were sufficiently restrictive to warrant a sentencing discount.
  • The Court of Criminal Appeal confirmed that both the fact of participation in, and the benefit derived from, residential rehabilitation are relevant considerations when a court determines the extent of any quasi-custody discount.
  • Credit may be given even where rehabilitation has not yielded a fully successful result, though the amount will depend on all the circumstances of the particular case.
  • The Court applied the R v McHugh methodology of backdating the commencement date of the sentence (by 75 per cent of the qualifying days) rather than reducing the total term, preserving the sentence's reflection of the objective gravity of the drug supply offence.
  • Where a sentencing court applies an incorrect legal test in declining to recognise quasi-custody, that constitutes an error of principle warranting intervention on appeal and re-sentencing by the appellate court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 166

Cases:
- Hughes v R [2008] NSWCCA 48; 185 A Crim R 155
- R v Campbell [1999] NSWCCA 76
- R v Delaney [2003] NSWCCA 342; 59 NSWLR 1
- R v Marschall [2002] NSWCCA 197; 129 A Crim R 381
- R v McHugh (1985) 1 NSWLR 588
- Renshaw v R [2012] NSWCCA 91
- Truss v R [2008] NSWCCA 325