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Court of Criminal Appeal 22 April 2016

Wiseman v R

[2016] NSWCCA 61

Drugs
CRIMINAL LAW SENTENCE APPEAL SUPPLYING A PROHIBITED DRUG APPLICANT SERVING OTHER SENTENCES NO ERROR APPEALED DISMISSED.

Citation: Wiseman v R [2016] NSWCCA 61
Court: Court of Criminal Appeal, NSW
Date: 22 April 2016
Judges: Hoeben CJ at CL, Harrison J, Schmidt J

Background

The applicant pleaded guilty to one count of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Police discovered him slumped in a running vehicle at a car park in Port Macquarie. When searched, he placed a container in his mouth and violently resisted police attempts to retrieve it. The item was ultimately removed at hospital and found to contain 14.54 grams of methylamphetamine at 79.5% purity.

The supply offence also breached two Local Court bonds, which were called up and dealt with in the District Court alongside the supply matter. The applicant was already serving Local Court sentences for other offences when the District Court sentence was imposed.

The sentencing judge imposed a sentence of 18 months with a non-parole period backdated to 28 February 2015, making the effective combined non-parole period across all sentences 2 years and 3 months, with a total term of 2 years and 9 months. The ratio of non-parole period to total head sentence was approximately 81.5%, exceeding the statutory standard of 75%.

  • Whether the sentencing judge failed to properly consider the doctrine of special circumstances in the context of partially accumulating the supply sentence on the existing sentences being served.
  • Whether the sentencing judge's failure to expressly address the effect of partial accumulation on the overall non-parole period ratio constituted a reviewable error.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's exercise of his sentencing discretion.

The Court acknowledged the established principle, drawn from Barrett v R [2011] NSWCCA 213, that where partial accumulation produces an effective non-parole period significantly exceeding 75% of the total term, a sentencing judge would ordinarily be expected to articulate reasons for that outcome. Absent such reasons, an inference might arise that the practical effect of accumulation had been overlooked. However, the Court found that inference did not arise on the facts of this case.

The sentencing proceedings were extensive, spanning four separate dates, and included lengthy exchanges between the judge and the applicant's legal representative specifically about the commencement date for the sentence and the effect of partial accumulation. The judge adjourned proceedings to obtain an up-to-date criminal history showing the dates of prior sentences, and ultimately rejected the Crown's submission that the sentence should be fully accumulated. These steps demonstrated the judge was clearly aware of the partial accumulation and its practical effect.

The Court also confirmed that s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a sentencing judge to reduce a sentence so that the effective non-parole period falls within 75% of the total term simply because partial accumulation occurs. The sentence had to appropriately reflect the overall criminality of the offending, and further concurrency would not have achieved that purpose.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where partial accumulation of sentences produces an effective non-parole period exceeding 75% of the total term, a sentencing judge is generally expected to articulate reasons for that outcome, but no error necessarily follows if the record demonstrates the judge was alive to the issue.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not impose a strict requirement to reduce a sentence so that the non-parole period remains within the standard 75% ratio whenever sentences are accumulated.
  • A sentencing court's active engagement with accumulation issues during proceedings, including adjourning to obtain updated sentencing information and rejecting a Crown submission for full accumulation, can be sufficient to demonstrate that the effect of accumulation was not overlooked.
  • The principle of totality requires a sentencing court to be mindful of the overall effect of accumulated sentences, but does not compel concessions that would fail to reflect the objective seriousness of the subject offending.
  • No automatic finding of special circumstances arises from the accumulation of sentences; whether such a finding is warranted remains a matter for the sentencing judge's discretion in each individual case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Luke Nathan Richard Barrett v R [2011] NSWCCA 213
- R v Wiseman (District Court (NSW), Toner SC DCJ, 20 April 2015)
- R v Nightingale [2005] NSWCCA 147 (cited within Barrett)