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Court of Criminal Appeal 24 August 2016

Kennedy v R

[2016] NSWCCA 187

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE FINDING OF SPECIAL CIRCUMSTANCES MADE WHERE NOT REFLECTED IN SENTENCE WHETHER ERROR WHETHER A LESSER SENTENCE IS WARRANTED

Citation: Kennedy v R [2016] NSWCCA 187
Court: Court of Criminal Appeal, NSW
Date: 24 August 2016
Judges: Hoeben CJ at CL, Campbell J, Button J

Background

The appellant pleaded guilty in the Local Court to supplying a commercial quantity of methylamphetamine between July and October 2013, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. At sentencing in the District Court in March 2015, the sentencing judge imposed a non-parole period of 3 years and 9 months with a balance of term of 1 year and 3 months.

The sentencing judge expressly found special circumstances, citing the appellant's need for extended supervision on release to address drug and alcohol issues, psychological instability, social reintegration, and return to work. Despite that finding, the sentence maintained the default statutory ratio of non-parole period to balance of term, rather than extending the additional term beyond one-third of the non-parole period as a special circumstances finding permits.

The appellant sought leave to appeal on the sole ground that the sentence failed to reflect the special circumstances finding the judge had already made.

  • Whether the sentencing judge erred by making a finding of special circumstances but then imposing a sentence that maintained the standard statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), without giving reasons for that apparent inconsistency.
  • Whether, if error was established, a lesser sentence was warranted in law on resentencing.

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error through inadvertence. The judge made an express finding of special circumstances but imposed a sentence that preserved the standard ratio without explaining why the ratio was not being varied. The Crown itself conceded that the judge appeared to have overlooked that the non-parole period represented 75 per cent of the total term.

Campbell J applied the principle from Heron v Regina [2006] NSWCCA 215: where a finding of special circumstances is made but the statutory ratio is not varied, the sentencing judge ought to give reasons for that approach. No such reasons were given here. Consistent with Caristo v R [2011] NSWCCA 7, this was characterised as a single sentencing exercise where the failure to give effect to the finding occurred through oversight rather than deliberate decision.

On resentencing, the Crown submitted that the appellant's poor prior record for serious driving offences demonstrated ongoing disobedience to the law, engaging the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 and warranting significant weight on specific deterrence. The Court acknowledged force in that submission and noted that specific deterrence bears directly on the non-parole period and additional term, and may in some cases justify not giving effect to a special circumstances finding even where error exists at first instance. However, Campbell J concluded that the sentencing judge's assessment of the criminal history was open and that a lesser sentence was warranted.

The non-parole period was reduced by five months, from 3 years and 9 months to 3 years and 4 months, while the end date of the total sentence remained unchanged. This produced a balance of term of 1 year and 8 months, giving effect to the special circumstances finding and extending the period of supervised parole.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentence imposed in the District Court on 20 March 2015 quashed.
  • Appellant resentenced to imprisonment with a non-parole period of 3 years and 4 months commencing 19 February 2014 and expiring 18 June 2017, with a balance of term of 1 year and 8 months commencing 19 June 2017 and expiring 18 February 2019.
  • Appellant first eligible for parole on 18 June 2017.

Key Takeaways

  • A finding of special circumstances does not automatically require variation of the statutory non-parole to additional term ratio, but where a sentencing judge makes such a finding and then does not vary the ratio, the judge must give reasons for that course. Failing to do so is an error.
  • Inadvertence or oversight in failing to give effect to a special circumstances finding constitutes a "failure to take into account a material consideration" in House v the King terms, and opens the door to resentencing by an appellate court.
  • Specific deterrence is a factor that operates on the components of the non-parole period and additional term directly. In appropriate cases, it may justify not varying the statutory ratio despite a special circumstances finding, even on appeal.
  • The Court of Criminal Appeal confirmed that the correct remedy once sentencing error is established is resentencing in accordance with Kentwell v The Queen (2014) 252 CLR 601, to determine whether a lesser sentence is warranted in law.
  • Upholding the appeal here did not alter the total sentence length. The correction was achieved by reducing the non-parole period and extending the additional term, preserving the end date while giving practical effect to the rehabilitation purposes underlying the special circumstances finding.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Caristo v R [2011] NSWCCA 7
- Heron v Regina [2006] NSWCCA 215
- House v the King [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Tsakonas v R [2009] NSWCCA 258; 197 A Crim R 581
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465