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17
Court of Criminal Appeal 28 July 2016

Lee, Matthew v R

[2016] NSWCCA 146

DrugsFraud & dishonestyFirearms & weapons
CRIME APPEAL SENTENCING WHETHER DISCOUNT APPLIED ERROR REQUIRING RESENTENCING

Citation: Lee, Matthew v R [2016] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 28 July 2016
Judges: Basten JA and McCallum J (joint judgment); Davies J (agreeing, with one exception at [23])

Background

The applicant was arrested in December 2012 and charged with a series of drug and firearms offences arising from a sustained period of drug supply from his Tamworth home, conducted in the presence of two very young children. Following surveillance over approximately two months, police executed a search warrant and found methylamphetamine, a shortened double-barrel shotgun, and cash proceeds of crime.

The applicant pleaded guilty in the Local Court to most charges and later entered guilty pleas in the District Court to an indictment containing five counts, including ongoing supply of methylamphetamine, supply of cannabis, supply of methylamphetamine (relating to drugs found on arrest), unauthorised possession of a prohibited firearm, and knowingly dealing with proceeds of crime. The Crown conceded at the sentencing proceedings that the pleas had been entered at the first available opportunity, entitling the applicant to a 25% discount.

The sentencing judge (Berman SC DCJ) made no reference to that discount in his ex tempore reasons for sentence. The applicant, who was unrepresented at the time, sought to appeal but was labouring under a misapprehension that his notice of appeal had been filed. Due to an administrative error, it had not been, causing a significant delay before the matter came before the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to refer to, or apply, the agreed 25% discount for early guilty pleas in his reasons for sentence.
  • Whether error could be inferred from the absence of any reference to the discount in the judge's reasons, even though the discount had been expressly acknowledged in exchanges during the proceedings.
  • Whether the delay in filing the notice of appeal should be excused and an extension of time granted.
  • Whether, if error was established, resentencing was required and what the appropriate sentence was.

Decision

The Court of Criminal Appeal held that the sentencing judge's failure to mention the 25% discount in his reasons gave rise to a proper inference that the discount had not been applied. While there is no absolute legal obligation to give reasons in criminal sentencing (following Public Service Board of New South Wales v Osmond), where a significant concession has been expressly acknowledged during proceedings and then goes entirely unmentioned in the reasons, a court can conclude the matter was overlooked. The omission was not a mere failure of expression; it was an indicator of actual error.

The Court also addressed how a discount should be applied in practice. Rather than mechanically reducing each individual head sentence by 25%, the correct approach is to identify the appropriate sentence for the offending and then apply the discount to that figure, ultimately producing sentences that reflect both the objective seriousness and the utilitarian benefit of the plea.

Davies J agreed with the joint judgment except in relation to one aspect at paragraph [23], though the nature of that disagreement is not fully elaborated in the available text.

Having found error, the Court resentenced the applicant. It assessed the offending as serious, involving large-scale commercial drug supply, firearms, and offending in the presence of young children, but also recognised the applicant's personal circumstances, including health issues and the agreed discount. The Court imposed an aggregate sentence of 8 years imprisonment (reduced from the original sentence) with a non-parole period of 5 years and 4 months.

Orders Made

  • Extension of time for commencement of the application for leave to appeal granted to 20 January 2016.
  • Leave to appeal granted.
  • Appeal allowed; sentence imposed in the District Court on 21 March 2014 quashed.
  • Applicant resentenced to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months, commencing 20 December 2012, with an additional term of 2 years and 8 months.
  • First eligible for release to parole on 20 April 2018.

Key Takeaways

  • A sentencing court's complete failure to mention an expressly conceded and significant discount for early guilty pleas can support an inference that the discount was not applied, constituting error on sentence.
  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the correct approach to applying an early guilty plea discount is to determine the appropriate sentence for the offending and then reduce it by the relevant percentage, rather than working backwards from a desired outcome.
  • While there is no general duty to give reasons in criminal sentencing proceedings, the absence of reasons bearing on a material and agreed issue can itself be treated as evidence of error, particularly where the issue was raised expressly during the hearing.
  • An administrative error causing a self-represented applicant to believe a notice of appeal had been filed, when it had not, was accepted as adequate explanation for a delay of nearly two years, supporting the grant of an extension of time.
  • In resentencing for serious drug supply and firearms offences, the Court of Criminal Appeal must take care to apply the totality principle, avoiding an aggregate sentence that is disproportionate to the overall criminality even where multiple significant offences call for some degree of accumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 36Z
- Firearms Act 1996 (NSW), ss 7, 62
- Supreme Court Act 1970 (NSW), s 69

Cases:
- Convery v R [2014] NSWCCA 93
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Opacic v R [2013] NSWCCA 294
- Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
- R v Keyte (2000) 78 SASR 68
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Regina v Lawrence [2005] NSWCCA 91
- Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
- Woodward v The Queen [2014] NSWCCA 205