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Court of Criminal Appeal 2 September 2016

Des Rosiers v R

[2016] NSWCCA 196

Drugs
CRIMINAL LAW SENTENCE APPEAL SERIOUS DRUG OFFENCE PROPER APPROACH TO RE SENTENCING REHABILITATION DEMONSTRATED

Citation: Des Rosiers v R [2016] NSWCCA 196
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2016
Judge(s): Macfarlan JA (with Hall J and Bellew J agreeing)

Background

The appellant had been convicted following guilty pleas to multiple drug supply offences, the most serious being the supply of a large commercial quantity of LSD (98 times the large commercial quantity). Police executing a search warrant at his premises in April 2004 seized 19 vials of liquid LSD, substantial quantities of MDMA and cannabis, and other prohibited drugs. The LSD alone was estimated to have a street value of between $200,000 and $1,500,000.

The District Court sentenced the appellant in February 2005 to 18 years' imprisonment on Count 1 with a 12-year non-parole period. A 2006 Court of Criminal Appeal decision varied sentences on other counts but left the Count 1 sentence unchanged, resulting in no overall alteration to the sentence.

Following the High Court's decision in Muldrock v The Queen (2011), the appellant applied under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to have his matter referred back to the Court of Criminal Appeal as a further appeal. An initial application was refused in 2014, but a second application succeeded in April 2016, relying on Muldrock, Kentwell v The Queen, and Buttrose v Attorney General (NSW). The appellant had been released on parole on 21 April 2016, shortly before the appeal was heard.

  • Whether the 2006 Court of Criminal Appeal decision contained a Muldrock error in its approach to the standard non-parole period for the Count 1 offence.
  • Whether that error vitiated the sentencing discretion, requiring the Court to re-exercise that discretion.
  • What sentence was appropriate on re-sentencing, having regard to the appellant's circumstances including his demonstrated rehabilitation and time already served.

Decision

The Crown conceded, and the Court accepted, that the 2006 decision was inconsistent with the subsequent Muldrock principles in at least one respect. That error vitiated the exercise of the sentencing discretion, and the Court was required to re-sentence the appellant afresh rather than merely correct the error at the margins.

On re-sentencing, the Court noted the objective seriousness of the Count 1 offence. The appellant was involved in a significant drug operation, and the quantity of LSD seized was 98 times the large commercial quantity. These factors carried substantial weight.

However, the Court gave significant weight to the passage of time and the appellant's demonstrated rehabilitation. Specific deterrence was not a significant consideration in the circumstances. The Court observed that the appellant was in the unusual position of being able to demonstrate rehabilitation as a reality rather than a mere prospect, having already served approximately 12 years in custody and shown good conduct both in prison and on parole, as well as securing employment.

The Court assessed the appropriate non-parole period at 10 years and 6 months. Applying the standard 3:1 ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) produced a balance of term of 3 years and 6 months, giving a head sentence of 14 years. No special circumstances warranting departure from the statutory ratio were found. The Court noted that with this sentence, the appellant would remain on parole for approximately a further 20 months, which was considered sufficient given his conduct.

Orders Made

  • Appeal allowed.
  • The sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1 was quashed.
  • For the offence of Supply a Large Commercial Quantity of LSD (Count 1), taking into account the Form 1 offences: imprisonment for 14 years commencing 20 April 2004 and expiring 19 April 2018, with a non-parole period of 10 years and 6 months commencing 20 April 2004 and expiring 19 October 2014.
  • The Court noted that sentences on Counts 2, 3 and 4 had expired before the Count 1 sentence, and that the appellant accordingly became eligible for release to parole on 19 October 2014.

Key Takeaways

  • A Muldrock error in a prior appellate sentence vitiates the sentencing discretion entirely, requiring the Court to re-exercise that discretion afresh rather than simply make minor adjustments.
  • Where an offender is referred back to the Court of Criminal Appeal under s 78(1) of the Crimes (Appeal and Review) Act 2001, no separate grant of leave to appeal is required, following Louizos v The Queen.
  • Demonstrated rehabilitation, as distinct from rehabilitation as a mere prospect, constitutes a significant mitigating factor on re-sentencing, particularly where the passage of time allows rehabilitation to be assessed as an established fact.
  • In applying the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the Court of Criminal Appeal found no special circumstances warranting variation where the appellant had already served a lengthy custodial term and faced only a limited further period on parole.
  • The reduced sentence of 14 years (head sentence) with a 10-year-and-6-month non-parole period replaced the original 18-year head sentence with a 12-year non-parole period, reflecting the re-exercise of discretion on corrected principles rather than any reassessment of the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 78(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Kentwell v R (No 2) [2015] NSWCCA 96
- Buttrose v Attorney General (NSW) [2015] NSWCA 221; 324 ALR 562
- Louizos v The Queen [2014] NSWCCA 242
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Betts v The Queen [2016] HCA 25; 90 ALJR 758
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Pham [2015] HCA 39; 90 ALJR 13
- Thammavongsa v R [2015] NSWCCA 107