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Court of Criminal Appeal 4 July 2014

Deakin v R

[2014] NSWCCA 121

Drugs
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD BEING SERVED PAROLE PERIOD ON COUNT 1 LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Deakin v R [2014] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 4 July 2014
Judges: Hoeben CJ at CL, Adams J, Hall J (judgment delivered by Hall J)

Background

The appellant had been serving a sentence imposed in December 2008 for drug offences committed in 2000, carrying a non-parole period of 3 years and 9 months expiring in March 2011. While on remand in 2007, he had also been charged with more serious offences arising from his participation in a large MDMA supply network in 2007, including supplying 30.242 kg of MDMA (a large commercial quantity) and participating in a criminal group.

In June 2012, the District Court sentenced the appellant on those later charges: a 10 years and 6 months head sentence on Count 1 (supply), with a non-parole period of 7 years and 6 months, and a fixed 12-month term on Count 2 (criminal group participation). The sentences were intended to commence with some overlap with the earlier sentence, but the sentencing judge stated an intention to backdate by three months while in fact backdating by only two months. The net effect was that the new sentences commenced only two months before the expiry of the earlier non-parole period, producing a substantial period of accumulation.

The appellant sought leave to appeal, arguing that the commencement date was wrong, that insufficient allowance had been made for special circumstances when setting the non-parole period on Count 1, and that the Crown conceded the two-month/three-month discrepancy.

  • Whether the sentencing judge erred in commencing the new sentences only two months before the completion of the earlier non-parole period, rather than achieving a greater degree of concurrency
  • Whether the sentencing judge made inadequate allowance for the finding of special circumstances when calculating the non-parole period on Count 1
  • Whether the sentencing judge erred in selecting the commencement date for the sentences, given the acknowledged discrepancy between the stated intention (three-month backdate) and the sentences actually imposed (two-month backdate)

Decision

Hall J (with Hoeben CJ at CL and Adams J agreeing) granted leave to appeal despite delay, accepting that the delay was not caused by inactivity on the appellant's part. On Ground 3, the Crown conceded the error: the sentencing judge had stated an intention to backdate by three months but had in fact backdated by only two months. That error alone warranted the grant of leave and correction on resentencing.

On the broader question of commencement date and concurrency, Hall J found that commencing the new sentences only two months before the expiry of the earlier non-parole period was insufficient and produced an inappropriately heavy cumulative result. The Court held that the sentences should have commenced earlier, on 28 March 2010 (one year before the expiry of the earlier non-parole period), to achieve proper and principled concurrency between the two sets of sentences. This reduced the effective overall non-parole period by 1 year and 7 months, from 11 years and 1 month to 9 years and 6 months.

On Count 1, the Court confirmed that the terms of the sentence and the non-parole period, taken in isolation, were appropriate. It also confirmed that the finding of special circumstances made by the original sentencing judge should carry through on resentencing, and noted that the ratio of the overall non-parole period to the overall head sentence across both sets of proceedings would be approximately 71.6%.

Orders Made

  • Leave to appeal against the sentences imposed on 26 June 2012 granted
  • Appeal allowed
  • Sentences imposed by the District Court on 26 June 2012 quashed
  • Appellant resentenced as follows:
  • Count 1: Non-parole period of 6 years and 9 months commencing 28 March 2010, expiring 27 December 2016; balance of term of 3 years and 9 months expiring 27 September 2020
  • Count 2: Fixed term of 12 months commencing 28 March 2010, expiring 27 March 2011
  • Earliest date of eligibility for release to parole: 28 December 2016

Key Takeaways

  • Where multiple sentences are imposed at different times for related or overlapping criminal conduct, the commencement date of later sentences must be chosen so as to produce an overall result that is just and proportionate, not merely technically valid.
  • Commencing a new sentence only two months before the expiry of an earlier non-parole period was found to be insufficient concurrency in circumstances where the offending periods overlapped and the principles of totality applied.
  • A sentencing judge's stated intention as to backdating forms part of the sentencing discretion exercised; where the sentence as drawn does not give effect to that intention, this constitutes an error capable of correction on appeal.
  • The Court of Criminal Appeal confirmed that a finding of special circumstances made at first instance carries through to resentencing, and must inform the ratio between the non-parole period and the balance of term.
  • Under the totality principle, the court must assess the overall effective non-parole period across consecutive or partially concurrent sentences, not merely the internal structure of each sentence in isolation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93IK(1) (now renumbered s 93T(1))

Cases:
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen (2004) 78 ALJR 616
- R v Close (1992) 31 NSWLR 743
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- Choi v The Queen [2007] NSWCCA 150
- Franklin v R [2013] NSWCCA 122
- Kalache v R [2011] NSWCCA 210
- LG v The Queen [2012] NSWCCA 249
- R v MMK (2006) 164 A Crim R 481
- R v Scott [2005] NSWCCA 152