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Court of Criminal Appeal 24 June 2016

YY v Regina

[2016] NSWCCA 124

Drugs
APPEAL CRIMINAL APPEAL SENTENCE WHERE MULDROCK ERROR IDENTIFIED STRONG POST SENTENCE SUBJECTIVE CASE

Citation: YY v Regina [2016] NSWCCA 124
Court: Court of Criminal Appeal, New South Wales
Date: 24 June 2016
Judges: Harrison J (with RA Hulme J and Schmidt J agreeing)

Background

The appellant pleaded guilty to three counts of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985, arising from a police investigation into cocaine supply in Sydney's eastern suburbs in 2008 and 2009. The most serious count involved the discovery of nearly six kilograms of cocaine and over $1.3 million in cash at premises in Darling Point. The appellant was re-sentenced by the Court of Criminal Appeal in March 2011, receiving a non-parole period of nine years for the principal count of supplying a large commercial quantity.

Following a further complicated appellate history, the matter was referred back to the Court of Criminal Appeal under s 86 of the Crimes (Appeal and Review) Act 2001. The Court was required to treat the 2011 re-sentence as itself the subject of an appeal, with power to re-sentence if error was identified.

The appellant advanced a single ground of appeal: that the 2011 sentencing proceeded on an erroneous approach to the standard non-parole period, contrary to the principles later confirmed by the High Court in Muldrock v The Queen (2011) 244 CLR 120.

  • Whether the re-sentence imposed in March 2011 was infected by Muldrock error in the treatment of the standard non-parole period applicable to a large commercial drug supply offence.
  • Whether, if error was established, a lesser sentence was "warranted in law" under s 6(3) of the Criminal Appeal Act 1912, given the appellant's strong post-sentence subjective case.

Decision

The Crown conceded that Muldrock error had occurred. The question before the Court therefore turned entirely on s 6(3) of the Criminal Appeal Act 1912: whether, exercising an independent sentencing discretion, the Court was persuaded that a lesser sentence should be substituted.

Harrison J accepted that the appropriate starting point for Count 3 (taking into account two related matters on the Form 1) was a head sentence of 20 years imprisonment. A combined discount of 45 percent was applied, reflecting the appellant's early guilty plea and assistance to authorities. That produced a head sentence of 11 years.

The significant factor distinguishing the resentencing from the 2011 outcome was the appellant's strong post-sentence subjective case. Affidavit evidence before the Court documented substantial rehabilitation and personal development during custody. Harrison J held that this progress should be acknowledged and encouraged, and that it substantially influenced the appropriate sentence for Count 3.

The Court concluded that a non-parole period of 8 years and 3 months was warranted, reducing the original non-parole period of 9 years. All other sentences imposed in 2011 had by then expired and were not revisited, consistent with the approach endorsed in Kentwell v The Queen.

Orders Made

  • Appeal allowed.
  • Sentence for Count 3 imposed in March 2011 quashed.
  • In substitution, the appellant sentenced to imprisonment with a non-parole period of 8 years and 3 months commencing 26 August 2009 and expiring 25 November 2017, with a balance of term of 2 years and 9 months expiring 25 August 2020.
  • First eligible date for release on parole: 26 November 2017.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a conceded Muldrock error in the treatment of a standard non-parole period is sufficient to enliven the Court's re-sentencing jurisdiction under s 6(3) of the Criminal Appeal Act 1912, but the concession does not automatically produce a lesser sentence.
  • Under s 6(3), the appellate court exercises its own independent sentencing discretion and will only substitute a lesser sentence if one is "warranted in law" on the full range of relevant factors.
  • Strong evidence of rehabilitation and self-improvement during custody, supported by affidavit material, constituted a factor "substantially influencing" the proper sentence and justified a reduction in the non-parole period.
  • Where sentences on other counts have already expired by the time a re-sentence is conducted, those expired sentences need not be individually revisited, consistent with the High Court's approach in Kentwell v The Queen.
  • A combined discount of 45 percent for an early guilty plea and assistance to authorities was applied without controversy, reflecting the cumulative weight those factors can carry in serious drug supply matters.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Crimes (Appeal and Review) Act 2001 (NSW), s 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 35
- Crimes Act 1900 (NSW), s 193C(1)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Louizos v R [2014] NSWCCA 242
- House v The King [1936] HCA 40; (1936) 55 CLR 499