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Court of Criminal Appeal 3 March 2015

Lambert v R

[2015] NSWCCA 22

DrugsPublic order & justice offences
APPEAL SUPPLY OF A PROHIBITED DRUG BUGMY V THE QUEEN [2013] HCA 37 SUBSTANTIAL WEIGHT ATTRIBUTED LEAVE TO APPEAL REFUSED APPEAL BREACH OF GOOD BEHAVIOUR BOND

Citation: Lambert v R [2015] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 3 March 2015
Judges: Ward JA, Simpson J, Davies J

Background

The appellant was convicted of supplying a prohibited drug (MDMA) following the discovery of 456 tablets at her Woolloomooloo premises in December 2011. She pleaded guilty and was sentenced in the District Court in January 2013 to two years' imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). As a condition of that suspension, she entered a two-year good behaviour bond requiring her, among other things, to abstain from illicit drugs and to accept Probation and Parole supervision.

The appellant breached both conditions. She was found in possession of a prescription drug (Xanax) without authorisation, and after initially complying with supervision she ceased to engage with the Probation and Parole Service. The District Court revoked the bond in February 2014 and resentenced her to two years' imprisonment with an 18-month non-parole period. The sentencing judge expressly declined to find special circumstances that would have justified reducing the non-parole period.

The appellant sought leave to appeal against both the 2013 sentence and the 2014 resentence. Given the significant delay, she also sought an extension of time in which to challenge the 2013 sentence.

  • Whether the 2013 sentencing judge had given appropriate weight to the appellant's severely deprived personal background as a mitigating factor, consistent with Bugmy v The Queen [2013] HCA 37.
  • Whether the 2014 resentencing judge erred by failing to consider, under s 99(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether the revoked sentence could instead be served by way of an intensive correction order (ICO) or home detention.
  • Whether the 2014 sentencing judge erred in declining to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have reduced the non-parole period.

Decision

2013 sentence (Ground 1(b)): The Court refused leave to appeal against the 2013 sentence. Simpson J found that the sentencing judge had in fact given substantial weight to the appellant's deprived background, including a childhood marked by her mother's heroin addiction, physical and sexual abuse, and disrupted schooling. No error in the application of Bugmy principles was established. The extension of time was granted, but leave was refused.

2014 sentence (Ground 2(a) - failure to consider alternatives on resentencing): The Court identified error in the approach taken at resentencing. Section 99(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required the judge, upon revoking a suspended sentence, to consider whether the term of imprisonment ought instead to be served by way of an ICO or home detention. The resentencing judge had not addressed that question. Although the Court could not determine on the available material whether the appellant was actually suitable for an ICO, that uncertainty itself made remitter the appropriate course rather than substituting a different sentence.

2014 sentence (Ground 2(b) - special circumstances): The Court found no error in the judge's refusal to find special circumstances. While a first period of imprisonment commonly grounds such a finding, the judge concluded that the very conduct that led to the bond breach (failure to engage with supervision) gave no basis for expecting that an extended parole period with similar supervision would assist the appellant. Simpson J accepted that reasoning as sound.

The Court remitted the 2014 sentencing proceedings to the District Court for further consideration of the alternatives available under s 99(2).

Orders Made

  • Extension of time granted to apply for leave to appeal against the sentence imposed on 29 January 2013.
  • Leave to appeal against the 29 January 2013 sentence refused.
  • Leave to appeal against the sentence imposed on 28 February 2014 granted.
  • Appeal against the 28 February 2014 sentence allowed.
  • Sentence imposed on 28 February 2014 quashed.
  • Proceedings remitted to the District Court for further hearing.

Key Takeaways

  • Under s 99(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court revoking a suspended sentence is required to consider whether the resulting term of imprisonment should instead be served by way of an ICO or home detention; failure to address that question constitutes error.
  • The Court of Criminal Appeal confirmed that Bugmy v The Queen obligations were engaged on the 2013 sentencing facts, but found them satisfied where the original sentencing judge demonstrably gave substantial weight to the offender's deprived background.
  • A first period of imprisonment commonly provides a basis for finding special circumstances under s 44(2), but that presumption can be displaced where other circumstances, including the offender's failure to respond to the supervision already in place, point against an extended parole term.
  • Where an appellate court cannot determine from available material whether an offender is suitable for an alternative sentencing option, remitter to the original court for further consideration is the appropriate remedy rather than substitution of a different sentence.
  • In dismissing the appeal against the 2013 sentence, the Court exercised its discretion to consider a new issue (adequacy of the Bugmy analysis) in the interests of justice, consistent with the approach in R v Birks (1990) 19 NSWLR 677.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 7, 12, 44(2), 50, 67(1)(b), 98, 99, Pts 4 and 5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 175
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Birks (1990) 19 NSWLR 677
- R v Boughen; R v Cameron [2012] NSWCCA 17; 215 A Crim R 476
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Zerafa [2012] NSWSC 978
- R v Zreika [2012] NSWCCA 44; 223 A Crim R 460