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Court of Criminal Appeal 20 May 2016

Kelloway v R

[2016] NSWCCA 95

Drugs
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE SPECIAL CIRCUMSTANCES WHETHER LESSER SENTENCE WARRANTED LEAVE GRANTED APPEAL UPHELD

Citation: Kelloway v R [2016] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 20 May 2016
Judge(s): Bathurst CJ, Schmidt J, Wilson J

Background

A jury convicted the appellant of supplying a prohibited drug, methylamphetamine, in an amount of 27 grams, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing judge found he had travelled from the Gold Coast to Wollongong to purchase the drugs in a commercial arrangement with an acquaintance, intending to share both the cost and supply, while also being a user himself. She imposed a sentence of 2 years' imprisonment with a non-parole period of 18 months.

The appellant sought leave to appeal on the ground that the sentencing judge failed to address whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Under that provision, the parole period (or "balance of term") must not exceed one-third of the non-parole period unless the court finds special circumstances and records its reasons. The standard 18-month non-parole period on a 2-year sentence produces a 6-month parole period, which sits precisely at that statutory ratio.

Submissions had been made to the sentencing judge on the question of special circumstances, but her Honour's remarks did not address them. The Crown conceded the error but opposed the appeal on the basis that no lesser sentence was warranted.

  • Whether the sentencing judge erred by failing to address the question of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether, once that error was established, any lesser sentence was warranted in the exercise of the Court's fresh sentencing discretion
  • Whether a finding of special circumstances was appropriate in light of the appellant's subjective circumstances and rehabilitation needs

Decision

Schmidt J (with whom Bathurst CJ and Wilson J agreed) granted leave to appeal and found that the sentencing judge had overlooked the special circumstances application despite it being put in submissions. This was consistent with the approach taken in Baghdadi v R [2012] NSWCCA 212, where a similar omission was treated as an oversight rather than a deliberate rejection.

Once a specific error in the sentencing exercise is established, the Court of Criminal Appeal must exercise the sentencing discretion afresh, as confirmed in Kentwell v The Queen (2014) 252 CLR 601. The total head sentence of 2 years was not challenged, and the court accepted that the seriousness of the offending and the appellant's subjective circumstances supported that figure.

On the question of special circumstances, Schmidt J identified several relevant factors: the appellant's long-standing drug and alcohol problems, the risk of relapse, the benefit of extended post-release supervision, and the presentence report's finding that relapse prevention work was necessary. The judge also noted that the offence, while serious, was motivated by personal use rather than broader commercial distribution.

Balancing the need for adequate actual incarceration against the benefits of extended community supervision, Schmidt J reduced the non-parole period from 18 months to 16 months, keeping the head sentence at 2 years. This produced a parole period of 8 months rather than 6, with conditions requiring participation in substance abuse treatment and counselling.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed
  • Appellant resentenced to 2 years' imprisonment commencing 5 February 2015, with a non-parole period of 16 months expiring 4 June 2016 and a parole period expiring 4 February 2017
  • Appellant to be released on parole at expiry of the non-parole period pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Parole to be supervised, with compliance required with all reasonable directions of the Department of Corrective Services relating to ongoing substance abuse treatment and counselling

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must address a submitted application for special circumstances even where it ultimately declines to depart from the statutory ratio; unexplained silence on the issue may constitute error.
  • A finding that submissions on special circumstances were "overlooked" rather than implicitly rejected is consistent with the approach in Baghdadi v R [2012] NSWCCA 212, particularly where the sentencing remarks engaged with related matters but omitted any reference to the application.
  • Once specific sentencing error is established, the Court of Criminal Appeal exercises the discretion afresh and determines the appropriate sentence independently, applying the principles in Kentwell v The Queen (2014) 252 CLR 601.
  • Special circumstances may be found where an offender's rehabilitative needs, substance abuse history, and risk of relapse indicate that a longer period of supervised parole would benefit both the offender and the community.
  • In fixing a reduced non-parole period, the resentencing court must still ensure the period of actual custody adequately reflects the objective seriousness of the offence, the relevant elements of punishment, and the offender's subjective circumstances, as stated in Power v The Queen (1974) 131 CLR 623.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 44(2), 50(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Baghdadi v R [2012] NSWCCA 212
- Fitzpatrick v R [2010] NSWCCA 26
- R v Fidow [2004] NSWCCA 172
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704