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Court of Criminal Appeal 4 November 2014

R v West

[2014] NSWCCA 250

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE IMPORTANCE OF BACKDATING A SENTENCE STAGE PROCESS FAILURE TO ASSESS OBJECTIVE SERIOUSNESS REMARKS ON SENTENCE INSUFFICIENT

Citation: R v West [2014] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 4 November 2014
Judges: Hoeben CJ at CL, RA Hulme J, Adamson J

Background

The respondent pleaded guilty in the Local Court to supplying a commercial quantity of methylamphetamine (245.22 grams), contrary to the Drug Misuse and Trafficking Act 1985 (NSW). He was committed to the District Court for sentencing and appeared before Ellis DCJ. A number of additional matters, including possession of a prohibited weapon and receiving stolen property, were placed on a Form 1 to be taken into account at sentencing.

During the sentence hearing, the sentencing judge adopted an unusual two-stage approach. Rather than proceeding directly to sentence, his Honour remanded the respondent in custody for approximately three months to allow time for an Intensive Correction Order (ICO) assessment report to be prepared. His Honour then imposed a sentence of two years imprisonment to be served by way of an ICO.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912 (NSW), arguing principally that the sentence was manifestly inadequate and that the sentencing process was both legally flawed and contrary to the relevant legislation.

  • Whether the sentencing judge had power to revoke bail for the purpose of ensuring the respondent served a period of pre-sentence custody, thereby influencing the eventual sentence outcome.
  • Whether sentencing ought to be conducted as a two-stage process in the manner adopted by his Honour.
  • Whether the sentencing judge failed to properly assess the objective seriousness of the offending, address general deterrence, and provide adequate remarks on sentence.
  • Whether the sentence of an ICO was lawfully available given the constraints in section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether, even if error and manifest inadequacy were established, the Court of Criminal Appeal should exercise its residual discretion to decline to re-sentence.

Decision

The Court of Criminal Appeal found that the sentencing process was fundamentally flawed in several respects. The sentencing judge had no power to revoke bail for the collateral purpose of ensuring the respondent served pre-sentence custody. Under the Bail Act 1978 (NSW), bail can only be revoked on proper grounds; using revocation as a sentencing mechanism was unauthorised. Hoeben CJ at CL described the overall approach as "idiosyncratic manipulation" that had no place in the sentencing process.

Adamson J found that the two-stage approach was legally impermissible. Sentencing is not a process to be conducted in instalments. The judge's remarks on sentence were also insufficient: they failed to properly assess the objective seriousness of the offending and omitted any real consideration of general deterrence, both of which are required purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The eventual ICO was also found to have been imposed in contravention of section 7 of that Act.

Despite these errors, and despite the Court accepting that the sentence was manifestly inadequate, Adamson J concluded that the residual discretion should be exercised in the respondent's favour. The flawed process had been entirely of the sentencing judge's making, not the respondent's. The respondent had been unlawfully deprived of his liberty when bail was wrongly revoked, and an administrative error arising from the Crown appeal had further delayed implementation of the ICO. In those particular circumstances, the Court declined to intervene by re-sentencing.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing judge has no power to revoke bail for a collateral purpose, such as engineering a period of pre-sentence custody to influence the eventual sentence. The Bail Act 1978 (NSW) does not authorise revocation for extraneous sentencing purposes.
  • Sentencing must not be conducted as a two-stage process. Splitting the exercise so that pre-sentence custody is deliberately accumulated before imposing a community-based order is both contrived and unauthorised.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is required to address all relevant purposes in section 3A, including general deterrence and objective seriousness. Omitting these considerations is a legal error capable of vitiating a sentence.
  • The Court of Criminal Appeal confirmed that it retains a residual discretion to dismiss a Crown appeal even where sentencing error and manifest inadequacy are established, citing Griffiths v The Queen (1977) 137 CLR 293 and Green v The Queen (2011) 244 CLR 462. That discretion was exercised here because the procedural unfairness flowed entirely from the sentencing judge's conduct.
  • In dismissing the appeal, the Court emphasised that consistency in sentencing depends on proper application of legislated principles, and that judicial officers have an obligation to apply those principles without resort to idiosyncratic approaches.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 6, 14, 16, 32, 67
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 11, 33, 47
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Reeves v The Queen [2013] HCA 57
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447
- R v Dodd (1991) 57 A Crim R 349
- R v Campbell [2014] NSWCCA 102
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115