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Court of Criminal Appeal 19 August 2015

Moses v R

[2015] NSWCCA 218

DrugsTheft & propertyTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG COURT INITIAL SENTENCE

Citation: Moses v R [2015] NSWCCA 218
Court: Court of Criminal Appeal, New South Wales
Date: 19 August 2015
Judge(s): Simpson JA, Button J, Fagan J (all agreeing)

Background

The applicant was assessed as eligible for the Drug Court Program in April 2013, having accumulated a series of offences including multiple break and enter charges, drug possession and supply, and driving while disqualified. The Drug Court imposed "initial sentences" under the Drug Court Act 1998 (NSW) on two separate occasions, resulting in a combined aggregate sentence of four years, wholly suspended for the duration of the Program.

The applicant's participation in the Program ultimately failed. On 25 September 2014, the Drug Court imposed a "final sentence" of four years and two months pursuant to section 12 of the Drug Court Act, with a non-parole period of two years and two months. The applicant sought leave to appeal that final sentence on multiple grounds.

The nine offences covered by the final sentence included four break and enter matters, drug possession, two supply charges, driving while disqualified, and an aggravated break and enter committed while the applicant was already participating in the Program.

  • Whether the Court of Criminal Appeal had jurisdiction to hear an appeal from the Drug Court concerning an aggregate sentence combining summary and indictable offences, and whether that appeal should be heard by a single judge or a full bench.
  • Whether the final sentence imposed under section 12 of the Drug Court Act infringed section 12(4), which prohibits any increase in the sentence for a particular offence between the initial and final sentencing stages.
  • Whether section 58(1) of the Crimes (Sentencing Procedure) Act 1999, which limits the accumulation of Local Court sentences to five years, applied to limit the Drug Court's sentencing power.
  • Whether an aggregate sentence combining summary and indictable offences was permissible under the Drug Court Act.
  • Whether there was an error in the backdating of the commencement of the final sentence.

Decision

Jurisdiction and bench composition: Fagan J addressed a preliminary procedural question about whether appeals concerning summary offences from the Drug Court should be heard by a single judge or a full bench. Because the aggregate sentence covered both summary and indictable offences, it was not practical to separate the two, and Fagan J determined that the interests of justice required the full Court to hear the summary offence component alongside the indictable offence component. This was done in accordance with section 5AF(3)(b) of the Criminal Appeal Act 1912 (NSW).

Section 12(4) prohibition on increasing individual sentences: The applicant argued that the final sentence was greater than the initial sentence, contrary to section 12(4) of the Drug Court Act. The Court rejected this argument. Section 12(4) only prohibits an increase in the sentence for a particular individual offence, not an increase in the overall aggregate term. No such increase for any individual offence was established on the facts.

Accumulation of Local Court sentences and aggregate sentencing: The Court dismissed the argument that section 58(1) of the Crimes (Sentencing Procedure) Act 1999, which restricts Local Court accumulation of sentences to five years, applied to the Drug Court. Section 15(3) of the Drug Court Act excludes that provision. Similarly, the Court found no valid objection to an aggregate sentence combining summary and indictable offences, noting that sections 7A and 12 of the Drug Court Act expressly contemplate precisely that outcome.

Backdating error: The Court acknowledged a minor arithmetical error of eleven days in the initial calculation of the sentence commencement date. The Crown informed the Court that this error had already been corrected in chambers by the sentencing judge. The Court confirmed the correct parameters: an aggregate sentence of four years and two months commencing 6 September 2013 and expiring 5 November 2017, with a non-parole period of two years and two months expiring 5 November 2015.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • Under section 12(4) of the Drug Court Act 1998, the prohibition on increasing a sentence between the initial and final sentencing stages applies to individual offences within an aggregate, not to the aggregate total itself.
  • The Drug Court Act expressly permits aggregate sentences combining summary and indictable offences; sections 7A and 12 of that Act are the operative provisions, and the general Local Court accumulation limits in the Crimes (Sentencing Procedure) Act 1999 do not apply to the Drug Court (see section 15(3) of the Drug Court Act).
  • Where an appeal from the Drug Court involves an aggregate sentence spanning both summary and indictable offences, a single judge may exercise the power to refer the full appeal to a three-judge bench under section 5AF(3)(b) of the Criminal Appeal Act 1912 when it would be impractical to separate the two components.
  • A minor backdating error made during sentencing remarks can be corrected in chambers, and the Court of Criminal Appeal may confirm the corrected figures in its reasons.
  • In dismissing the appeal, the Court confirmed the structural framework for Drug Court sentencing and appeals without altering the four-year two-month aggregate imposed at final sentence.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), ss 7A, 12, 15(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A, 58(1)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Crimes Act 1900 (NSW), ss 112(1)(a), 112(2), 113
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Criminal Procedure Act 1986 (NSW), s 267
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)

Cases cited: No cases were cited in the judgment.