Citation: He v R [2016] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 7 October 2016
Judges: Meagher JA; Harrison J; R A Hulme J (with reasons)
Background
The applicant, a Chinese national who had overstayed a tourist visa, was arrested in July 2014 after accepting a controlled delivery of a parcel containing over four kilograms of pure ephedrine imported from overseas. A subsequent search of his home uncovered a further 340 grams of pure ephedrine, along with evidence suggesting he intended to sell it.
He pleaded guilty to unlawfully importing a tier 1 good under the Customs Act 1901 (Cth) and possessing a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW). In September 2015, the District Court sentenced him to three years' imprisonment for the importation offence and a fixed term of 15 months for the possession offence, partially accumulated so that the overall effective term was three years with no parole or conditional release period whatsoever.
The sentencing judge assumed the applicant would be deported on release and, on that basis, imposed a fixed term for the possession offence rather than incorporating a non-parole period. The applicant sought leave to appeal on four grounds, two of which the Crown conceded involved error.
Legal Issues
- Whether the sentencing judge erred by allowing the prospect of deportation to eliminate any period of parole or conditional release
- Whether the judge erred by finding special circumstances (justifying a reduced non-parole proportion) for the possession offence but then failing to give that finding any practical effect
- Whether the judge misapplied the totality principle, including by incorrectly treating the two offences as unrelated
- Whether the overall sentence was manifestly excessive
Decision
The Court of Criminal Appeal upheld grounds one and two, with the Crown conceding both errors. On ground one, the sentencing judge's reliance on the applicant's likely deportation as a reason to deny him any conditional release period was contrary to established High Court authority, specifically The Queen v Shrestha (1991) 173 CLR 48. The prospect of deportation is not a legitimate basis for structuring a sentence so as to eliminate parole entirely.
On ground two, the judge had expressly found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), identifying the applicant's continuing rehabilitation prospects as the basis. That finding required the non-parole proportion to be reduced below the statutory default. By imposing a fixed term instead, the judge made a finding and then disregarded it, rendering the finding meaningless. The Court accepted the Crown's concession that this was error.
On ground three, the totality errors flowed directly from the errors in grounds one and two, making a proper totality assessment impossible at first instance. The Court also noted that the Crown conceded the two offences were in fact related, involving the same substance and connected in time, contrary to the sentencing judge's finding. The Court did not need to make a separate finding of manifest excess given its conclusions on the other grounds.
On resentencing, the Court imposed 2 years 6 months for the importation offence and 12 months for the possession offence. Applying the totality principle with appropriate partial accumulation, it fixed an overall custodial component of 2 years. The practical effect was that the applicant was entitled to immediate release upon entering into a recognizance.
Orders Made
- Leave to appeal granted and appeal allowed.
- Sentences imposed in the District Court on 14 September 2015 quashed.
- Applicant resentenced as follows:
- Possess prohibited drug: fixed term of 12 months from 15 July 2014, expiring 14 July 2015.
- Import tier 1 good without approval: 2 years 6 months from 15 January 2015, with release on recognizance (security of $100, no surety, good behaviour condition) after serving 1 year 6 months.
Key Takeaways
- A sentencing court cannot use the prospect of an offender's deportation to justify imposing a fixed term and eliminating any period of parole or conditional release. The Court of Criminal Appeal confirmed this principle is well-settled, citing The Queen v Shrestha (1991) 173 CLR 48.
- Where a sentencing court finds special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that finding must be given practical effect in the structure of the sentence. A finding of special circumstances that does not alter the non-parole proportion is no finding at all.
- Under the totality principle, a sentencing court must accurately characterise the relationship between multiple offences. The Crown conceded here that two offences involving the same substance and a close temporal connection were related, contradicting the first-instance finding that they were independent.
- Resentencing on appeal does not require the Court of Criminal Appeal to expressly quantify a guilty plea discount where it has been taken into account in mitigation alongside other favourable findings, consistent with Cameron v The Queen (2002) 209 CLR 339.
- Errors in structuring individual sentences can render a proper totality assessment impossible, requiring the appellate court to resentence from the ground up rather than simply adjust individual components.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233BAA(4)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37