Citation: Moss v R [2016] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 4 November 2016
Judges: Macfarlan JA; Price J; Hidden AJ
Background
The applicant, a British citizen, pleaded guilty in the District Court to two counts of dealing with the proceeds of crime (totalling over $664,000 in cash) and one count of supplying a prohibited drug (77.8 grams of methylamphetamine). All three offences occurred on 7 August 2014, when Australian Crime Commission and NSW Police investigators arrested him at a Sydney hotel. A ledger found in his possession recorded a series of cash pickups and drop-offs between 17 July and 7 August 2014, including a reference to collecting $1 million on 6 August 2014.
The sentencing judge in the District Court imposed sentences producing a total term of four years and nine months, with an effective non-parole period of approximately three years, nine months and 23 days. The Court noted with concern the distinct lack of clarity in the sentencing judge's identification of those sentences, both in the court orders and in the Remarks on Sentence.
The applicant sought leave to appeal. The Crown conceded that errors existed in the sentencing judge's reasoning, making re-sentencing by the Court of Criminal Appeal necessary.
Legal Issues
- Whether errors in the sentencing judge's reasoning required the Court of Criminal Appeal to re-sentence the applicant by an independent exercise of discretion.
- What sentences were appropriate across the three offences, having regard to the objective seriousness of the conduct, the applicant's subjective circumstances, and applicable guilty plea discounts.
- Whether special circumstances existed to justify adjusting the ratio of non-parole period to balance of term on any of the counts.
Decision
Because the Crown conceded errors in the sentencing judge's reasoning, the Court of Criminal Appeal was required to re-sentence the applicant by exercising its own independent discretion, following the approach in Kentwell v The Queen (2014) 252 CLR 601. The Court confirmed it was neither necessary nor appropriate to assess how influential those errors had been in producing the original sentences.
In re-sentencing, the Court considered the objective circumstances of the offences, including the significant sums of cash involved, the organised nature of the conduct as evidenced by the ledger, and the quantity and purity of the methylamphetamine. The applicant's subjective circumstances were also taken into account, including his background, employment history, and the difficulties he had experienced following his business's bankruptcy.
For Count 1, the Court settled on a head sentence of four years, reduced by 25 per cent for the early guilty plea to three years. The same sentence, commencing six months after Count 1, was applied to Count 2. For Count 3, a head sentence of four years was reduced by 15 per cent for the guilty plea to three years and four months, commencing nine months after the start of Count 2. The sentences were structured with partial concurrency.
The Court found special circumstances in relation to Count 3, justifying an increase in the proportion of the balance of term relative to the head sentence, so that the overall non-parole period represented approximately 75 per cent of the total sentence and the balance of term approximately 25 per cent. The resulting overall head sentence was four years and seven months.
Orders Made
- Leave to appeal against sentence granted.
- Appeal allowed; sentences imposed by the District Court on 9 October 2015 quashed.
- Count 1 (dealing with proceeds of crime, $330,500): non-parole period of 2 years and 3 months commencing 7 August 2014, concluding 6 November 2016; balance of term of 9 months concluding 6 August 2017.
- Count 2 (dealing with proceeds of crime, $333,980): non-parole period of 2 years and 3 months commencing 6 February 2015, concluding 6 May 2017; balance of term of 9 months concluding 6 February 2018.
- Count 3 (supply prohibited drug): non-parole period of 2 years and 2 months commencing 7 November 2015, concluding 6 January 2018; balance of term of 1 year and 2 months concluding 6 March 2019.
- Overall head sentence: 4 years and 7 months; non-parole period of 3 years and 5 months commencing 7 August 2014 and concluding 6 January 2018; balance of term of 1 year and 2 months concluding 6 March 2019.
- First eligible parole date: 6 January 2018.
Key Takeaways
- Where the Crown concedes errors in a sentencing judge's reasoning, the Court of Criminal Appeal must re-sentence by exercising its own independent discretion, without needing to determine how influential the errors were in the original outcome (following Kentwell v The Queen).
- Lack of clarity in sentencing orders and Remarks on Sentence was expressly identified as a regrettable feature of the original District Court proceeding.
- A 25 per cent guilty plea discount applied to the proceeds of crime counts (entered at an early stage), while a lesser 15 per cent discount applied to the drug supply count, reflecting the different timing of those pleas.
- Special circumstances can justify adjusting the balance of term beyond the standard proportion where individual sentence structures, combined with partial concurrency, produce an overall term warranting a longer supervision period on release.
- In re-sentencing, the court applied partial concurrency across the three counts, with each sentence staggered to reflect the distinct criminality involved while avoiding a crushing aggregate penalty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193B(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
- King v R [2015] NSWCCA 99
- R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238
- R v Shrestha (1991) 173 CLR 48; [1991] HCA 26
- Yang v R [2007] NSWCCA 37