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Court of Criminal Appeal 24 June 2015

Byrne v R

[2015] NSWCCA 159

Drugs
CRIMINAL LAW 2 CHARGES OF SUPPLYING PROHIBITED DRUGS RELATED FORM 1 MATTERS SENTENCE CUSTODY SENTENCE REDUCED TO TIME SERVED

Citation: Byrne v R [2015] NSWCCA 159
Court: Court of Criminal Appeal
Date: 24 June 2015
Judge(s): Hoeben CJ at CL; Hidden J; Adams J

Background

The appellant pleaded guilty in the District Court to two charges of supplying indictable quantities of heroin and methamphetamine, both offences under the Drug Misuse and Trafficking Act 1985. Additional offences of dealing with the proceeds of crime and conducting drug premises were taken into account on a Form 1. The offending related to drug supply activity in the Newcastle area conducted between late 2012 and January 2013.

The appellant had been in custody for approximately four months following his arrest before being released on bail to enter a residential drug rehabilitation program. By the time of sentencing he had spent eleven months at the rehabilitation centre and received strongly positive reports. Despite this, the sentencing judge imposed a fixed term of nine months' imprisonment, directing the sentence to commence on the day it was imposed rather than backdating it to account for the pre-sentence custody period.

After serving approximately three months of that sentence, the appellant was granted bail pending the appeal. The Court of Criminal Appeal heard the application on 25 May 2015, at which point the appellant had served a total of seven months.

  • Whether the sentencing judge erred by failing to take into account the approximately four months of pre-sentence custody served prior to sentence being imposed
  • Whether the sentencing judge erred by failing to consider an intensive corrections order as an alternative to full-time custody, in light of the decision in EF v R [2015] NSWCCA 36
  • Whether the disparity between the appellant's sentence and the intensive corrections order imposed on his co-offending partner gave rise to a sentencing error

Decision

The Court identified a clear error in the sentencing judge's approach: the four-month period of pre-sentence custody had simply been overlooked. Under section 24 of the Crimes (Sentencing Procedure) Act 1999, a court must take pre-sentence custody into account when sentencing. The preferred approach, as confirmed in Kaminic v R [2014] NSWCCA 116, is to backdate the sentence by an equivalent period, and where that approach is not taken, clear reasons must be stated. No such reasons were given, and the Crown conceded the error.

Because this ground was decisive, the Court did not need to resolve the more complex grounds concerning the intensive corrections order or the sentencing disparity, though those grounds were acknowledged as raising matters of substance.

The Court reduced the sentence on each count to a fixed term of seven months, backdated to 25 October 2014 and expiring on 24 May 2015. This had the practical effect of ensuring the sentence expired the day before the appeal was heard, so the appellant did not return to custody.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • On each count, sentence varied to a fixed term of seven months' imprisonment, commencing 25 October 2014 and expiring 24 May 2015

Key Takeaways

  • Under section 24 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must take pre-sentence custody into account, and where the preferred approach of backdating is not adopted, clear reasons for departing from it must be stated.
  • Silence in sentencing remarks about a known period of pre-sentence custody will not be read as implicit compliance with the statutory obligation; the Court of Criminal Appeal found it was not open to infer the matter had been considered in some unspecified way.
  • A strong subjective case, including demonstrated progress in drug rehabilitation, can have significant weight in sentencing even for serious drug supply offences carrying maximum terms of fifteen years.
  • The Court of Criminal Appeal structured the corrected sentence to expire on the day before the appeal hearing, reflecting the practical approach available when an appellant has already served the period equivalent to the correct sentence.
  • Grounds of appeal concerning failure to consider an intensive corrections order and sentencing disparity between co-offenders were noted as raising substantial issues, though they were not determined because the pre-sentence custody ground was sufficient to resolve the appeal.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 36Z(1)(a)
- Crimes Act 1900 (NSW), s 193C(1)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24

Cases
- EF v R [2015] NSWCCA 36
- Kaminic v R [2014] NSWCCA 116
- Wiggins v R [2010] NSWCCA 30
- R v English [2000] NSWCCA 245