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6
Court of Criminal Appeal 3 March 2015

Eriyo v R

[2015] NSWCCA 16

Drugs
CRIMINAL LAW IMPORTING DRUGS SENTENCING TWO OFFENCES JUDGE IMPOSES NON PAROLE PERIOD FOR EACH OFFENCE

Citation: Eriyo v R [2015] NSWCCA 16
Court: Court of Criminal Appeal
Date: 3 March 2015
Judges: Hoeben CJ at CL, Johnson J, Davies J (all agreeing)

Background

The appellant pleaded guilty in the District Court to two offences involving heroin: attempting to possess a marketable quantity of a border controlled drug, and possessing a separate marketable quantity of the same drug. The offences arose from a 2012 controlled delivery operation in which Australian Federal Police intercepted a consignment of 130.1 grams of pure heroin concealed in sandals, and separately found 118.7 grams of pure heroin hidden in a running shoe at the appellant's home.

The sentencing judge characterised the appellant as playing a role akin to a trusted middleman in an organised distribution chain. She imposed six-year sentences on each count, partially accumulated, producing an overall term of six years and ten months with a non-parole period of four years and ten months. Each individual sentence carried its own non-parole period set at a two-thirds ratio, but when accumulated the overall ratio rose to approximately 71 percent.

The appellant sought leave to appeal on three grounds: that the overall non-parole period was manifestly excessive, that the judge wrongly imposed separate non-parole periods for each offence, and that the pre-sentence custody had been incorrectly calculated.

  • Whether the imposition of separate non-parole periods for each Commonwealth offence was permissible, and whether any resulting error required resentencing
  • Whether the overall non-parole period of four years and ten months (approximately 71 percent of the total sentence) was manifestly excessive
  • Whether a "normal range" ratio for non-parole periods to head sentences exists in Commonwealth sentencing, following comments in earlier Court of Criminal Appeal decisions
  • Whether the sentencing judge incorrectly calculated and backdated the pre-sentence custody period

Decision

On the question of separate non-parole periods, the Crown conceded that the sentencing judge erred by imposing individual non-parole periods for each count, contrary to section 19AB of the Crimes Act 1914 (Cth), which requires a single aggregate non-parole period across Commonwealth sentences. The Court accepted that error was established.

On manifest excess, the Court held that no appealable error was shown in the overall non-parole period itself. The appellant's counsel had conceded in written submissions that the head sentences were within an acceptable range. Reviewing comparative cases, the Court found that a 71 percent ratio was not so unusual as to indicate error, particularly given that the sentencing judge had expressly acknowledged the effect of accumulation on the overall ratio. The Court also noted that comments in Okeke v R about a "normal range" ratio for Commonwealth sentences no longer applied following the High Court's decision in Hili v The Queen; Jones v The Queen, which discouraged prescriptive approaches to Commonwealth sentencing ratios.

On pre-sentence custody, the Crown conceded a further error. The sentencing judge had recognised 15 days of pre-sentence custody from 22 May to 6 June 2012, but then backdated the sentence only to 21 February 2014, the date bail was revoked at the sentencing hearing. She should have backdated it by a further 22 days to 6 February 2014 to account for that pre-sentence period.

The Court allowed the appeal on the conceded errors and resentenced the appellant. The overall non-parole period of four years and ten months was preserved, but the commencement date was corrected.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court on 28 February 2014 quashed
  • Count 1: imprisonment for six years commencing 6 February 2014, expiring 5 February 2020
  • Count 2: imprisonment for six years commencing 6 December 2014, expiring 5 December 2020
  • Single non-parole period of four years and ten months commencing 6 February 2014 and expiring 5 December 2018

Key Takeaways

  • Under section 19AB of the Crimes Act 1914 (Cth), a court sentencing for multiple Commonwealth offences must fix a single aggregate non-parole period, not separate non-parole periods for each individual count.
  • Following Hili v The Queen; Jones v The Queen [2010] HCA 45, there is no prescribed "normal range" ratio between non-parole periods and head sentences for Commonwealth drug offences. Earlier Court of Criminal Appeal observations suggesting such a norm are no longer applicable.
  • An overall non-parole period ratio of approximately 71 percent, arising from the partial accumulation of sentences each set at a two-thirds ratio, was held not to be manifestly excessive where the sentencing judge expressly acknowledged the effect and the head sentences were accepted as within range.
  • Where a sentencing judge correctly identifies pre-sentence custody but then fails to backdate the sentence by the full corresponding period, an error arises that warrants correction on appeal.
  • In dismissing the manifest excess ground, the Court treated comparative cases as a check on the result rather than a mechanism for deriving any normative ratio, consistent with the High Court's approach in Hili.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 19AB
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Okeke v R [2010] NSWCCA 266
- Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
- Briouzguine v R [2014] NSWCCA 264
- MLP v R [2014] NSWCCA 183