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Court of Criminal Appeal 19 February 2016

Bao v R

[2016] NSWCCA 16

Drugs
CRIMINAL LAW SENTENCE APPEAL ERROR CONCEDED BY CROWN NEED FOR COURT TO RE SENTENCE NO LESSER SENTENCE WARRANTED IN LAW.

Citation: Bao v R [2016] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 19 February 2016
Judges: Bathurst CJ, Hoeben CJ at CL, RS Hulme AJ

Background

The appellant pleaded guilty to five counts of supplying a prohibited drug and one count of possessing a precursor (hypophosphorous acid) with intent to manufacture, arising from two separate sets of offences in April 2013 and April 2014. The 2013 offences occurred at a unit in Ultimo where police executed a search warrant and found multiple drugs, weapons, drug paraphernalia, and significant cash. The 2014 offences took place at a separate Hurstville address, and the appellant was on bail for the 2013 matters at the time.

The sentencing judge imposed an aggregate sentence of five years and three months, with a non-parole period of three years and eight months. Indicative sentences were set for each count, and guilty plea discounts were applied to each, but the Crown conceded on appeal that the sentencing judge had erred by combining and averaging those discounts across the indicative sentences rather than applying an appropriate discount to each count individually.

The appellant sought leave to appeal on three grounds: that the judge had wrongly taken into account some criminal history; that the judge had erred in averaging the plea discounts; and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the appellant as having some relevant criminal history
  • Whether the sentencing judge erred by combining and averaging the guilty plea discounts applicable to each individual count, rather than applying them separately
  • Whether the aggregate sentence of five years and three months was manifestly excessive

Decision

The Crown conceded the second ground of appeal, acknowledging that the sentencing judge had incorrectly averaged the guilty plea discounts across the indicative sentences rather than applying an appropriate discount to each count in turn. This concession was properly made and accepted by the Court. The error in averaging discounts enlivened the Court's power to re-sentence the appellant.

On the criminal history ground, the Court found that while there may have been some error in the judge's approach to that issue, it was not necessary to resolve the point definitively given the conceded error on the plea discount ground already required re-sentencing.

In re-exercising the sentencing discretion, the Court was not persuaded that any of the indicative sentences were excessive. The 2014 offences were treated as significantly more serious than those of 2013: the appellant was on bail at the time, and on bail for offences of a similar character. The Court noted that the 2014 supply offence and possession of precursor warranted substantially higher indicative sentences than the 2013 offences, even accounting for the 25% plea discount applicable to the 2014 matters and a discount of no more than 10% for the 2013 matters. Taking all relevant matters into account, the Court was satisfied that no lesser sentence than the aggregate term imposed by the sentencing judge was warranted in law. The appeal was therefore dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge errs by combining and averaging guilty plea discounts across multiple counts rather than applying an appropriate discount to each count individually. The Crown conceded this error in the present case.
  • Where a conceded sentencing error requires the appellate court to re-sentence, the re-exercise of the discretion is not simply a mechanical correction: the Court of Criminal Appeal examines whether a lesser sentence is actually warranted in law on the totality of the material.
  • Offending committed while on bail for similar offences is a serious aggravating factor that can justify substantially higher indicative sentences for the later series of offences.
  • In dismissing the appeal despite the conceded error, the Court confirmed that correcting a sentencing methodology error does not automatically reduce the sentence if the outcome remains within a sound exercise of the sentencing discretion.
  • Judicial Commission sentencing statistics carry limited weight where the relevant offending category encompasses a wide range of drug weights, purities, offender roles, and aggravating circumstances not captured in the statistics.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 25(1)

Cases
- Glare v R [2015] NSWCCA 194
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Knight v R [2015] NSWCCA 222
- Miletic v R [2008] NSWCCA 74
- Pham v R [2014] NSWCCA 115
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Chidiac [2015] NSWCCA 241
- R v Morgan (1993) 70 A Crim R 368
- R v SY and Anor [2003] NSWCCA 291
- R v Wicks [2012] NSWCCA 208
- Vandeventer v R [2013] NSWCCA 33
- Wong v The Queen [2001] HCA 64; 207 CLR 584