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Court of Criminal Appeal 27 May 2014

Sinkovich v R

[2014] NSWCCA 97

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED APPEAL ALLOWED AND NEW SENTENCE IMPOSED

Citation: Sinkovich v R [2014] NSWCCA 97
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2014
Judges: Basten JA at [1]; Fullerton J at [6]; R A Hulme J at [7]

Background

The appellant was convicted by jury in 2009 of two drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW): knowingly taking part in the supply of methylamphetamine, and supplying not less than a commercial quantity of methylamphetamine. The offending involved the appellant organising the acquisition of drugs for on-supply, with telephone intercept evidence indicating he sat slightly above his co-offender in the trafficking hierarchy.

At first instance, Judge Conlon SC sentenced the appellant to a total effective term of 14 years with a minimum custodial period of 10 years. The sentence for the more serious count (commercial quantity supply, carrying a maximum of 20 years and a standard non-parole period of 10 years) was 13 years with a non-parole period of 9 years.

An earlier appeal against severity was dismissed by the Court of Criminal Appeal in 2011. This second appeal arose from a referral by Latham J under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), and focused on whether the sentencing judge had committed what is now known as "Muldrock error" in applying the standard non-parole period.

  • Whether the sentencing judge erred by treating the standard non-parole period as a starting point or as having determinative significance, contrary to the principles established in Muldrock v The Queen [2011] HCA 39
  • Whether, if such error was established, a lesser sentence was warranted on re-sentencing
  • What weight should be given to the relationship between the standard non-parole period and the maximum penalty when assessing the appropriate sentence

Decision

The Crown conceded the Muldrock error, and the Court accepted that concession. The sentencing judge's remarks showed he had followed the two-stage approach from R v Way, asking whether reasons existed to depart from the standard non-parole period rather than treating it as one of two guideposts to be weighed alongside all other sentencing factors. The High Court in Muldrock had made clear that approach was wrong.

The Court then turned to whether a lesser sentence was warranted. R A Hulme J concluded that the non-parole period of 9 years, set just below the 10-year standard, reflected an assessment that gave the standard non-parole period too much weight. Given the appellant's insignificant prior criminal record, his status as a first-time prisoner, and the finding of special circumstances (owing to his age and the need for adequate parole supervision), a lesser sentence was appropriate.

Basten JA added two further observations. First, the characterisation of the offending as "slightly above the mid-range" carried inherent imprecision, and it was unclear whether the judge intended the narrow or broader meaning of that phrase. Second, where a standard non-parole period, when converted to a full sentence using the statutory proportion under s 44(2), represents a high proportion of the maximum penalty, a court should consider whether that proportion is truly warranted by the facts, which may diminish the weight properly accorded to that guidepost.

The Court imposed a new sentence on count 2 of 11 years with a non-parole period of 7 years and 6 months, maintaining the same degree of partial accumulation on count 1 and the finding of special circumstances. The total effective sentence became 12 years with a non-parole component of 8 years and 6 months.

Orders Made

  • The appeal was allowed.
  • The sentence for count 1 was maintained.
  • The sentence for count 2 was quashed and replaced with imprisonment comprising a non-parole period of 7 years and 6 months and a balance of term of 3 years and 6 months, dating from 4 July 2009, with eligibility for parole on 3 January 2017 and the total term expiring on 3 July 2020.

Key Takeaways

  • Treating the standard non-parole period as a starting point or as having determinative significance, following the R v Way framework, constitutes Muldrock error and warrants appellate intervention.
  • A lesser sentence is not automatic upon establishing Muldrock error; the court must assess whether, absent the error, the sentence actually imposed gave disproportionate weight to the standard non-parole period.
  • Under the approach confirmed in Muldrock, the standard non-parole period and the maximum penalty are both guideposts, and the relationship between them is a relevant consideration when assessing the proper weight to give either.
  • Where a standard non-parole period, when converted to a head sentence using the statutory proportion in s 44(2) of the Crimes (Sentencing Procedure) Act 1999, represents a large fraction of the available maximum, that factor may reduce the weight properly accorded to the standard non-parole period on the specific facts.
  • Findings of special circumstances remain available and appropriate for first-time prisoners of mature age, and such findings were maintained on re-sentencing in this case.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54B, 54D, 21A
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Sinkovich v R [2011] NSWCCA 90
- AB v R [2013] NSWCCA 273
- Filippou v R [2013] NSWCCA 92
- Koh v R [2013] NSWCCA 287