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Court of Criminal Appeal 31 October 2014

Anjoul v R

[2014] NSWCCA 234

Drugs
CRIMINAL LAW SENTENCING APPLICANT IS BROTHER'S CARER EXCEPTIONAL CIRCUMSTANCES SHOWN IMPACT ON SENTENCE NON

Citation: Anjoul v R [2014] NSWCCA 234
Court: Court of Criminal Appeal, NSW
Date: 31 October 2014
Judges: Hoeben CJ at CL, Hidden J, Davies J

Background

The appellant pleaded guilty in the District Court to five offences committed on 11 October 2013, including supplying 168.4 grams of cocaine (an indictable quantity), possessing a prohibited weapon (pepper spray labelled "Police"), possessing two pieces of false identification, and dealing with proceeds of crime. He also pleaded guilty to two summary offences: driving while suspended and possessing a false licence.

At sentencing, the District Court heard significant evidence about the appellant's role as the full-time carer for his older brother Raymond, who suffered from muscular dystrophy and had sustained serious additional injuries in two separate motor vehicle accidents. Raymond required constant physical assistance throughout the day and could not perform basic functions such as eating or drinking without help. The appellant attended his brother's home from approximately 7:30am to 9:30pm daily. His mother, wife, and sister lacked the physical strength to provide equivalent care.

Judge Sides sentenced the appellant to a principal term with a non-parole period of ten months commencing 27 July 2014, with an additional term of 20 months, on the cocaine supply offence. The total effective custodial sentence was 30 months. The appellant sought leave to appeal, arguing the sentencing judge erred by not considering alternatives to full-time custody.

  • Whether the sentencing judge erred in concluding there was no alternative to a full-time custodial sentence of 30 months imprisonment
  • Whether the sentencing judge erred by failing to consider a wholly suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), or an Intensive Corrections Order (ICO)

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. The sentencing judge had expressly acknowledged Raymond's dependence on the appellant as a significant mitigating factor and had already applied it to substantially reduce the non-parole period. The authorities establish that, absent exceptional circumstances, a full-time custodial sentence is required for offences of this nature involving the supply of cocaine at the indictable quantity.

On the question of suspended sentences and ICOs, the Court found that the sentencing judge's observation that "there was no alternative to full time imprisonment" demonstrated that the alternatives raised in submissions had been considered and rejected. The Court confirmed that a sentencing judge is not obliged to expressly work through a two-stage sentencing analysis or specifically address each alternative in turn, provided the reasoning discloses the approach taken.

The Court also noted, without being asked by either party, that the sentencing judge appeared to have imposed a fixed term for the prohibited weapon offence (sequence 2), which carries a standard non-parole period. Under s 45(1) of the Crimes (Sentencing Procedure) Act, a fixed term is not available as a sentencing option for such offences. However, because that term had already expired by the time of the appeal, the Court found it unnecessary to correct the error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that third-party hardship, even involving a seriously ill and dependent family member, can constitute a significant mitigating factor that justifies a substantial reduction in the non-parole period, without necessarily displacing the requirement for full-time custody.
  • A sentencing judge dealing with a serious drug supply offence is not obliged to impose a suspended sentence or ICO merely because the offender performs an important caring role; exceptional circumstances must be demonstrated before such alternatives displace full-time custody.
  • No error is established simply because a sentencing judge does not expressly work through each sentencing alternative in turn, provided the reasons sufficiently disclose that those alternatives were considered: Douar v R [2005] NSWCCA 455 confirmed this proposition.
  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a fixed term of imprisonment is not a lawful sentencing option where an offence carries a standard non-parole period, though appellate intervention was unnecessary here because the term in question had already been served.
  • In dismissing the appeal, the Court applied the House v The King (1936) 55 CLR 499 standard, finding no identifiable error in the exercise of the sentencing discretion that would warrant intervention.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 12, 45
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Dipangkear v Regina [2010] NSWCCA 156
- Douar v R [2005] NSWCCA 455
- House v The King (1936) 55 CLR 499
- R v Hinton [2002] NSWCCA 405
- R v Zamagias [2002] NSWCCA 17