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Court of Criminal Appeal 27 May 2015

Donaghey v R

[2015] NSWCCA 119

Drugs
CRIMINAL LAW SENTENCE ERROR MADE OUT CRIMINAL LAW SENTENCE WHETHER ISSUE OVERLOOKED ERROR MADE OUT CRIMINAL LAW

Citation: Donaghey v R [2015] NSWCCA 119
Court: Court of Criminal Appeal, NSW
Date: 27 May 2015
Judge(s): Bathurst CJ, Simpson J, Bellew J (unanimous)

Background

The applicant pleaded guilty in the District Court to supplying methylamphetamine (13.46 grams at 79% purity) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Two additional matters were taken into account on a Form 1: dealing with property suspected of being proceeds of crime, and supplying 4.46 grams of heroin. The applicant had been on parole for an earlier drug supply conviction when the offending occurred in August 2013.

At sentencing, the District Court imposed a total sentence of 2 years and 4 months, with a non-parole period of 21 months, backdated to commence 28 January 2014. The applicant sought leave to appeal on two grounds: that the sentencing judge stated the wrong maximum penalty, and that she failed to address special circumstances in the context of the cumulative parole period.

  • Whether the sentencing judge's statement that the maximum penalty for the offence was 20 years imprisonment (rather than the correct 15 years) constituted a material error warranting resentence.
  • Whether the sentencing judge erred by failing to consider special circumstances when imposing a sentence that ran cumulatively on an existing parole period already being served.

Decision

Ground 1: Incorrect maximum penalty

The sentencing judge stated the maximum penalty was 20 years imprisonment. The correct maximum under s 25(1) of the Drug Misuse and Trafficking Act 1985 is 15 years. The Crown argued the judge had merely misspoken, pointing to a document in evidence that correctly stated 15 years and the judge's accurate identification of other sentencing parameters.

Bellew J rejected that argument as inviting impermissible speculation. The judgment had been reserved over a weekend and bore the marks of careful preparation, making a simple verbal slip less plausible. The error was found to be material, with the capacity to infect the exercise of the sentencing discretion, following Baxter v R [2007] NSWCCA 237. Ground 1 was made out, and the Court was required to resentence the applicant afresh under s 6(3) of the Criminal Appeal Act 1912.

Ground 2: Special circumstances and parole backdating

The applicant's parole had been revoked on 29 August 2013 as a direct consequence of the present offending. He then served the balance of his parole period (approximately six months and 14 days) before that sentence expired on 28 February 2014. The sentencing judge backdated the fresh sentence to 28 January 2014 but made no finding on special circumstances, despite submissions by defence counsel.

Bellew J found the failure to address special circumstances was an error. On resentencing, the Court found that the applicant's progress in custody, including employment and study, and evidence that he was no longer using illicit drugs, supported a finding of special circumstances. A longer parole period was warranted to support the applicant's prospects of rehabilitation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original District Court sentence quashed.
  • Applicant resentenced to 2 years imprisonment, commencing 28 January 2014 and expiring 27 January 2016.
  • Non-parole period of 1 year and 4 months imposed, commencing 28 January 2014 and concluding 27 May 2015.
  • Applicant eligible for parole from 28 May 2015, with sentence expiring 27 January 2016.

Key Takeaways

  • A sentencing judge's statement of the wrong maximum penalty constitutes a material error if it had the capacity to infect the exercise of the sentencing discretion, even where other materials before the court correctly stated the penalty.
  • Arguing that a sentencing judge "merely misspoke" requires the appellate court to speculate about what the judge actually had in mind, and the Court of Criminal Appeal declined to accept that reasoning where the judgment showed signs of deliberate preparation.
  • Where an offender serves a revoked parole period that is directly referable to the offending being sentenced, there is no absolute rule preventing some backdating of the fresh sentence to reflect that period; the matter is discretionary and turns on the degree of accumulation appropriate in the circumstances.
  • Special circumstances can be found where an offender demonstrates genuine rehabilitative progress during custody, including participation in employment and study programs and cessation of drug use, supporting the conclusion that a longer parole period would improve prospects of successful rehabilitation.
  • Under s 6(3) of the Criminal Appeal Act 1912, once a sentencing error is established, the appellate court must exercise the sentencing discretion afresh, taking into account all relevant purposes of sentencing and statutory factors.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Baghdadi v R [2012] NSWCCA 212
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Callaghan v R [2006] 160 A Crim R 145
- Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947
- R v Tuuta [2014] NSWCCA 40