AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 1 August 2016

R v Hatzisavvas; R v Lopez-Rios

[2016] NSWCCA 147

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE RESIDUAL DISCRETION ONUS DISCHARGED BY CROWN SENTENCES MANIFESTLY INADEQUATE NEED TO RE

Citation: R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 1 August 2016
Judge(s): Hoeben CJ at CL; Fullerton J; RS Hulme AJ

Background

Two respondents pleaded guilty in the Local Court to two counts each of supplying a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offences carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The first respondent received a combined discount of 33% for his guilty plea and assistance to authorities; the second received a 25% discount for his guilty plea alone.

The first respondent received an aggregate sentence of 8 years and 3 months with a non-parole period of 5 years. The second received an aggregate sentence of 9 years with a non-parole period of 5 years and 6 months. Both sentences were imposed by a District Court judge following guilty pleas.

The Director of Public Prosecutions appealed both sentences to the Court of Criminal Appeal on a single ground: that each aggregate sentence was manifestly inadequate.

  • Whether the sentencing judge properly assessed the objective seriousness of the offences
  • Whether the indicative sentences for each individual count were themselves manifestly inadequate
  • Whether the degree of notional accumulation applied between the two counts was inadequate, and failed to reflect the totality of the criminality involved
  • Whether the Crown was bound by concessions it made during the original sentencing proceedings
  • Whether the Court should exercise its residual discretion to decline to intervene even if error were established

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in her assessment of the objective seriousness of the offences. The offences involved large quantities of methylamphetamine at high purity, supplied as part of an organised criminal network, with both respondents playing active and knowing roles. The indicative sentences imposed for each count were found to be inadequate having regard to the criminality involved and the significant need for general deterrence.

A central finding concerned the degree of notional accumulation. Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge sets indicative sentences for individual counts and then arrives at a single aggregate term. The Court found that the aggregate sentences imposed fell well short of what the indicative sentences, taken together, demanded. This gap was itself indicative of error in the aggregate sentence.

The Court also addressed the Crown's position regarding concessions it had made at the original sentencing proceedings. Consistent with established principle, the Crown was held to be bound by those concessions on appeal. However, this did not prevent the Court from identifying the sentencing errors or from re-sentencing.

The Court was satisfied that the Crown had discharged its onus of demonstrating error, that the sentences were manifestly inadequate, and that the residual discretion to decline to intervene should not be exercised. Both respondents were re-sentenced to longer aggregate terms.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, the relationship between indicative sentences and the final aggregate term can itself reveal sentencing error: a substantial and unexplained gap between the two may indicate that the aggregate sentence is manifestly inadequate.

  • A Crown concession made during the original sentencing proceedings binds the Crown on appeal. The prosecution cannot, in a Crown appeal, resile from positions it adopted before the sentencing judge.

  • General deterrence carries significant weight in sentencing for the supply of large commercial quantities of methylamphetamine. The Court treated the serious and growing community harm caused by methamphetamine trafficking as a relevant sentencing consideration.

  • Residual discretion to decline to intervene in a successful Crown appeal is not exercised merely because re-sentencing is inconvenient or causes hardship to the offender. The onus remains on the Crown to establish that the original sentence was manifestly inadequate, but once discharged, intervention will ordinarily follow.

  • Notional accumulation of indicative sentences must genuinely reflect the totality of criminality across multiple counts. Inadequate accumulation is a recognised pathway to a finding of manifest inadequacy in the aggregate sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A
- Criminal Appeal Act 1912 (NSW), s 5E(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015
- Evidence Act 1995 (NSW), s 144
- Customs Act 1901 (Cth)

Cases
- Adams v The Queen [2008] HCA 15; 234 CLR 143
- CMB v Attorney General (NSW) [2015] HCA 9; 243 A Crim R 282
- Cullen v R [2014] NSWCCA 162
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Mulato v Regina [2006] NSWCCA 282
- Pantorno v The Queen [1989] HCA 18; 166 CLR 466
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Gall v R [2015] NSWCCA 69
- JM v R [2014] NSWCCA 297
- PD v R [2012] NSWCCA 242
- Poyner v The Queen (1986) 60 ALJR 616
- R v Brown [2012] NSWCCA 199