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Court of Criminal Appeal 20 March 2015

EF v R

[2015] NSWCCA 36

DrugsFraud & dishonesty
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE INTENSIVE CORRECTIONAL ORDER WHETHER EXCEPTIONAL CIRCUMSTANCES LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: EF v R [2015] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 20 March 2015
Judges: Macfarlan JA, Simpson J, Schmidt J

Background

The applicant pleaded guilty in the District Court to one count of supplying methylamphetamine and one count of dealing with proceeds of crime. He was sentenced by Blanch CJDC to a total term of imprisonment of two years with a non-parole period of six months. The sentencing judge acknowledged the compelling personal circumstances and imposed a sentence at the low end of the range, but no alternative to full-time custody was raised or considered during the proceedings.

The applicant was 37 at the time of sentencing. He had begun using methamphetamine while working 18-hour days managing a cotton farm, lost his home and possessions in a fire, and turned to dealing primarily to support his habit and meet basic living expenses. He had since obtained employment and was in a relationship with a partner who had recently been unwell during pregnancy.

The applicant initially sought leave to appeal on the ground that the sentence was manifestly excessive. He was unrepresented until shortly before the hearing, when the Court arranged legal aid and counsel appeared at short notice. Additional evidence was received on resentencing, including evidence of significant post-sentencing assistance provided to law enforcement authorities.

  • Whether the sentence of two years' imprisonment was manifestly excessive
  • Whether the sentencing judge fell into error by failing to consider alternatives to full-time custody, including an intensive correction order (ICO)
  • Whether that failure constituted a House v The King error, and if so, which category
  • Whether the applicant ought to be resentenced on appeal, and on what terms

Decision

The Court granted leave to appeal and upheld the appeal, though not on the ground of manifest excess. Schmidt J, with whom Macfarlan JA and Simpson J agreed, found that a sentence of two years with a non-parole period of six months for drug dealing on this scale was not unreasonable or plainly unjust. The error fell instead into the fourth House v The King category: failure to take into account a material consideration.

The material consideration that was overlooked was the availability of sentencing alternatives to full-time custody, specifically the ICO. No reference to an ICO or any other alternative was made during the sentencing proceedings by the applicant's legal representative, the Crown, or the sentencing judge. Both Schmidt J and Simpson J emphasised that section 5(1) of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to consider all possible alternatives before imposing a term of imprisonment, even where the offending involves substantial drug supply.

Simpson J observed that, while the "policy" or "rule" requiring full-time custody for substantial drug dealing is well established, it has always required individual consideration of each offender's circumstances. She further noted that the ICO did not exist when the foundational cases in this line of authority were decided, and its introduction in 2010 is a development that sentencing courts and legal practitioners must factor into that individual consideration.

Schmidt J concluded that this was not a case where EF would plainly have been found unsuitable for an ICO. His offending, personal circumstances, and compliance with bail conditions all suggested real prospects of suitability. Resentencing took account of the two months he had already served, his rehabilitation efforts, ongoing employment in a drug-tested environment, and very significant assistance to law enforcement authorities. A 50% combined discount for his plea and assistance reduced a starting sentence of two years and six months to one year and three months. That sentence was suspended on a good behaviour bond, an ICO no longer being an appropriate mechanism given the circumstances prevailing at the time of resentencing in March 2015.

Orders Made

• Appeal upheld
• Matter remitted for resentencing
• Total sentence of 2 years and 6 months imposed
• Sentence reduced by 50% for plea and assistance to law enforcement
• Sentence suspended on entering into a bond to be of good behaviour on conditions proposed by the Crown
• Term of imprisonment of 1 year and 3 months

Note: The judgment records that orders were made on 13 March 2015, with written reasons delivered on 20 March 2015. The specific orders are not reproduced in the text provided, but the outcome was: leave to appeal granted; appeal upheld; applicant resentenced to one year and three months' imprisonment, suspended on a good behaviour bond.

Key Takeaways

  • A sentence may be infected by House v The King error even where it is not manifestly excessive. The Court of Criminal Appeal here identified the error as falling into the fourth category: failure to take into account a material consideration, namely the availability of an ICO.
  • Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to consider all possible alternatives to imprisonment before imposing a custodial term, even in drug supply cases involving substantial dealing.
  • The long-standing "policy" that full-time custody is appropriate for substantial drug supply does not eliminate the obligation of individual consideration. Each offender's circumstances must be assessed on their merits, and that assessment must include practical alternatives to imprisonment.
  • The Court of Criminal Appeal confirmed that the introduction of ICOs in 2010 is a relevant development that sentencing courts must factor into the individual consideration required by established drug supply sentencing principles.
  • Failure by an applicant's legal representative to raise alternatives to full-time custody, including an ICO, can produce an injustice sufficient to warrant intervention on appeal, particularly where the offender's circumstances suggest real prospects of suitability for such an order.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 7, 23
- Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
- Crimes Act 1900 (NSW), s 193B(2)
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes (Sentencing Procedure) Regulation 2010

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Gu [2006] NSWCCA 104
- R v Cacciola (1988) 104 A Crim R 178
- R v Clark (NSWCCA, 15 March 1990, unreported)
- R v Cartwright (1989) 17 NSWLR 243
- SZ v R [2007] NSWCCA 19
- Lambert v R [2015] NSWCCA 22
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Munday (1981) 2 NSWLR 177