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Court of Criminal Appeal 18 April 2016

R v Thomson

[2016] NSWCCA 56

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MODEST SUBJECTIVE CASE NEED TO RE SENTENCE.

Citation: R v Thomson [2016] NSWCCA 56
Court: Court of Criminal Appeal, NSW
Date: 18 April 2016
Judge(s): Hoeben CJ at CL; Harrison J; Davies J

Background

The respondent was sentenced in the District Court in September 2015 on two separate indictments arising from drug-related offending in 2011 and 2012. The first indictment concerned a Commonwealth offence: conspiracy to import a commercial quantity of border-controlled drugs, including approximately 3.96 kg of pure cocaine, 1.3 kg of pure methamphetamine, 2.25 kg of pure MDMA, and 3.79 kg of pure PMMA, concealed inside the metal frame of an industrial oven shipped from Canada. The second indictment concerned a State offence: the supply of a large commercial quantity of methylamphetamine (1.97 kg), as well as possession of a prohibited weapon (a taser).

The drug importation scheme involved the respondent coordinating with associates to take delivery of the oven after Australian Federal Police had intercepted and replaced the drugs with substitute packages. Police conducted surveillance and ultimately arrested the respondent and his associates in January 2012 when they moved to retrieve the concealed packages.

The sentencing judge imposed a non-parole period of 7.5 years for the conspiracy to import offence, and an aggregate 6-year non-parole period for the State offences, ordered to run wholly concurrently with the Commonwealth sentence. The Crown appealed, arguing the sentences were manifestly inadequate and that the fully concurrent structure was an error in principle.

  • Whether the sentencing judge erred in ordering that the sentences for the State offences run wholly concurrently with the Commonwealth sentence, given that the offences were separate and discrete.
  • Whether the sentences were manifestly inadequate, having regard to the seriousness of the offending, the need for general and specific deterrence, and the totality principle.
  • Whether the sentencing judge erred in failing to indicate non-parole periods for the State offences as required by the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court of Criminal Appeal found error in the sentencing approach on the first ground. The conspiracy to import and the large commercial supply of methylamphetamine were separate and discrete offences committed at different times. Because the offences were not part of the same criminal enterprise, ordering the State sentences to run wholly concurrently with the Commonwealth sentence failed to reflect the true criminality involved. The Court held that some degree of accumulation was required.

On the question of the sentences' individual lengths, the Court accepted that the objective seriousness of each offence was high. Both offences carried a maximum penalty of life imprisonment. The subjective case for the respondent was described as modest. The Court noted the need to maintain public confidence in the administration of criminal justice as a relevant sentencing consideration.

Having identified error, the Court was required to re-sentence the respondent. The Court preserved the individual sentence lengths imposed at first instance but adjusted the structure so that the Commonwealth sentence commenced after the State sentence's non-parole period had run, effectively increasing the total non-parole period by three years. The respondent's stated intention to pursue tertiary study while in custody was noted but did not materially alter the outcome.

Orders Made

  • The Crown appeal was allowed.
  • The sentences imposed by the District Court on 28 September 2015 were quashed.
  • In respect of the State offences (including the Form 1 matter), the respondent was sentenced to an aggregate non-parole period of 6 years commencing 19 January 2012 and expiring 18 January 2018, with a balance of term of 3 years expiring 18 January 2021.
  • In respect of the Commonwealth offence, the respondent was sentenced to a non-parole period of 7.5 years commencing 19 January 2015 and expiring 18 July 2022, with a balance of term of 6.5 years expiring 18 January 2029.

Key Takeaways

  • Where an offender is sentenced for separate and discrete offences arising from different criminal conduct, ordering the sentences to run wholly concurrently may constitute a legal error, even where the offences are broadly related to drug trafficking.
  • The Court of Criminal Appeal confirmed that the conspiracy to import drugs (a Commonwealth offence) and the large commercial supply of methylamphetamine (a State offence) were sufficiently distinct in time and character to require at least partial accumulation of sentences.
  • Under the approach in CMB v Attorney General for New South Wales [2015] HCA 9, once an error is identified in the exercise of a sentencing discretion, the appellate court must exercise the discretion afresh and is not confined to determining whether the original sentence happened to fall within an acceptable range.
  • High objective seriousness, a modest subjective case, and the public interest in confidence in the administration of criminal justice are factors that collectively weigh against a structure that effectively negates the penalty for one set of serious offences.
  • An offender's intention to pursue rehabilitation through tertiary study while in custody may be a relevant factor on re-sentence, but it will not necessarily produce a material reduction where the other sentencing considerations are weighty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Criminal Code Act 1995 (Cth), ss 11.1(5) and 307.1(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54B(4)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- CMB v Attorney General for New South Wales [2015] HCA 9
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- 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
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Pannowitz v R [2016] NSWCCA 13
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- Regina v Cahyadi [2007] NSWCCA 1
- Regina v XX [2009] NSWCCA 115
- SZ v Regina [2007] NSWCCA 19; 168 A Crim R 249