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Court of Criminal Appeal 20 May 2015

Hutchen v R

[2015] NSWCCA 101

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE.

Citation: Hutchen v R [2015] NSWCCA 101
Court: Court of Criminal Appeal, New South Wales
Date: 20 May 2015
Judge(s): Hoeben CJ at CL (leading judgment); Adams J; McCallum J (both agreeing)

Background

The applicant pleaded guilty in the Newcastle District Court to three offences: supplying a prohibited drug (methylamphetamine), dealing with the proceeds of crime, and possessing a prohibited firearm. The offences arose from a police pursuit on 1 September 2012, after which the applicant was found in possession of over 71 grams of methylamphetamine, a keyring pistol, and nearly $34,000 in cash. Two Forms 1 matters were also taken into account at sentencing.

Critically, the offences were committed while the applicant was on parole for an earlier drug and firearms conviction. His parole was revoked and he served the balance of that term from 1 September 2012 to 11 September 2013. The sentences for the current offences therefore commenced on 12 September 2013.

The sentencing judge imposed an overall head sentence of five years with a non-parole period of three years and eight months, and found that special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term. The applicant sought leave to appeal on the basis that the sentencing judge had not in fact given effect to that finding, and had also failed to properly consider the overlap between pre-sentence custody and the revoked parole period.

  • Whether the sentencing judge erred by finding special circumstances but failing to give practical effect to that finding when structuring the sentences.
  • Whether the sentencing judge was required to consider, when fixing the commencement date of the new sentences, the period the applicant spent in custody while also serving the balance of a revoked parole term.

Decision

Ground 1: Special circumstances not given effect. The Court of Criminal Appeal accepted this ground. The sentencing judge expressly found special circumstances, referring to the applicant's need for an extended period of supervision on release and his suitability for an intensive drug rehabilitation program. However, the overall sentence structure did not translate that finding into a proportionately longer balance of term. The Court found this constituted an error, as the finding of special circumstances must be reflected in the sentences actually imposed.

Ground 2: Parole balance period. The Court rejected this ground. Where an offender's parole is revoked and the offender serves the balance of term concurrently with pre-sentence custody for new offences, the sentencing judge retains a discretion as to whether to backdate or adjust the new sentences to account for any overlap. Drawing on Callaghan v R and Barnes v R, the Court confirmed that the exercise of this discretion is not subject to a rigid rule. The applicant could not identify a specific error in the sentencing judge's approach, nor demonstrate that the discretion was wrongly exercised on House v King grounds.

Re-sentencing. Because the first ground was made out, the Court re-sentenced the applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37. It confirmed the sentences on the drug supply and proceeds of crime counts, but quashed and re-imposed the sentence on the prohibited firearm count with an adjusted commencement date. The effect was to increase the level of concurrency, producing an overall sentence of five years imprisonment with a non-parole period of three years and three months, reducing the non-parole period by five months while preserving the same head sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed by Mahony SC DCJ on 9 May 2014 confirmed, except for the sentence on the prohibited firearm offence (s 7(1) Firearms Act 1996).
  • The sentence for the prohibited firearm offence quashed and replaced with a non-parole period of 2 years commencing 12 December 2014 and expiring 11 December 2016, with a balance of term of 1 year expiring 11 December 2017.

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 is not merely a formal step: it must be given practical effect in the structure of the sentences actually imposed, and a failure to do so constitutes identifiable error.
  • Where a sentencing judge finds special circumstances but the resulting sentence does not reflect a departure from the standard non-parole to balance-of-term ratio, the Court of Criminal Appeal will intervene and re-sentence.
  • The discretion as to whether to make a new sentence concurrent with or cumulative upon a revoked parole period is not constrained by any strict rule requiring the sentencing court to treat time served under a revoked parole as equivalent to pre-sentence custody for the new offences.
  • In dismissing the second ground, the Court confirmed that an applicant seeking to disturb such a discretionary sentencing decision must identify a specific error or satisfy the House v King standard for demonstrating wrongful exercise of discretion.
  • Re-sentencing under Kentwell v The Queen [2014] HCA 37 requires the appellate court to give effect to the sentencing judge's stated intentions, adjusting the structure of sentences to implement what the primary judge intended but failed to achieve.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 47(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Barnes v R [2014] NSWCCA 224
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Caristo v R [2011] NSWCCA 7
- CM v R [2013] NSWCCA 341
- House v King [1936] HCA 40; 55 CLR 49
- Ith v R [2013] NSWCCA 280
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Maroun Younes v R [2012] NSWCCA 259
- R v Kitchener [2003] NSWCCA 134
- Sabongi v R [2015] NSWCCA 25