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45
Court of Criminal Appeal 23 August 2017

Robertson v R

[2017] NSWCCA 205

Drugs
SENTENCING APPEAL AGAINST SENTENCE WHERE ERROR ON FORM 1 WHERE OFFENCE NOT KNOWN TO LAW RESENTENCING NECESSARY SENTENCING PENALTIES

Citation: Robertson v R [2017] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 23 August 2017
Judge(s): Simpson JA (with Harrison J and Davies J agreeing)

Background

The appellant pleaded guilty in the District Court to four counts of supplying prohibited drugs under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from his possession of MDMA and psilocin found in a safe in a parked vehicle, together with text message evidence of small-quantity drug supply arrangements. The District Court imposed an aggregate sentence of 20 months' imprisonment with a non-parole period of 10 months.

The sentencing judge accepted the appellant's remorse, cessation of drug use, and good rehabilitation prospects. However, the judge concluded that the facts amounted to "substantial trafficking" in prohibited drugs, and that a long line of authority stemming from R v Clark (CCA, 15 March 1990, unreported) required full-time imprisonment absent "exceptional circumstances." On that basis, the judge rejected the appellant's submission that the sentence be served by way of an intensive correction order (ICO).

The appellant sought leave to appeal on two grounds: that the sentencing judge misapplied the so-called Clark principle, and that an ICO remained an available sentencing option despite a finding of substantial drug trafficking.

  • Whether a Form 1 item purportedly based on an offence against s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) was valid, given the substance in question was not a restricted substance under that Act.
  • Whether a finding of "substantial trafficking" in prohibited drugs required the sentencing judge to impose full-time imprisonment absent exceptional circumstances.
  • Whether an ICO was an available sentence in cases where substantial drug trafficking had been found.
  • Whether the judicially mandated "Clark principle," requiring full-time custody in cases of substantial drug trafficking, is compatible with the statutory sentencing discretion conferred on judges.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on two grounds. First, the Form 1 included an item based on an offence not known to law, because the substance involved was not a restricted substance under the Poisons and Therapeutic Goods Act 1966. The Crown properly conceded this error. Second, following EF v R [2015] NSWCCA 36, the Court confirmed that an ICO is an available sentencing option even where substantial drug trafficking has been established, and the sentencing judge's contrary view was an error of law.

Both errors vitiated the original sentence and required resentencing. Having regard to the four months' imprisonment the appellant had already served of his 10-month non-parole period, the Court resentenced him to a fixed term of 12 months' imprisonment, suspended under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 upon the appellant entering into a 12-month good behaviour bond.

Simpson JA also delivered extensive additional remarks, agreed to by Harrison J and Davies J, addressing the broader question of the Clark principle's compatibility with judicial sentencing discretion. Her Honour examined a substantial body of High Court and Court of Criminal Appeal authority and expressed doubt, without finally deciding the matter, as to whether the prescriptive formulation of Clark, mandating full-time custody absent exceptional circumstances, can stand alongside the broad sentencing discretion conferred by statute. Her Honour observed that while historical sentencing patterns rightly serve as a yardstick, they should not operate as a peremptory rule that forecloses consideration of available sentencing alternatives.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence set aside.
  • Appellant resentenced to a fixed term of 12 months' imprisonment, suspended under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 upon entry into a 12-month good behaviour bond.

Key Takeaways

  • A Form 1 item based on conduct that does not constitute a known offence is invalid, and sentencing on that basis constitutes a legal error requiring resentencing.
  • Under s 7 of the Crimes (Sentencing Procedure) Act 1999, an ICO remains an available sentencing option even after a finding of substantial drug trafficking. The District Court's contrary conclusion was inconsistent with EF v R [2015] NSWCCA 36.
  • Simpson JA, with whom Harrison J and Davies J agreed, expressed serious doubt about whether the Clark principle, requiring full-time imprisonment absent exceptional circumstances in cases of substantial trafficking, is compatible with the broad statutory sentencing discretion. This question was not finally determined but is flagged as a live issue.
  • Past sentencing patterns remain a legitimate "yardstick" that sentencing courts must consult, but the Court of Criminal Appeal signalled that they should not be elevated into a mandatory rule that removes other sentencing options from consideration.
  • In resentencing, courts are required to give full and genuine consideration to all available sentencing dispositions, including non-custodial alternatives, rather than treating any judicially stated "principle" as displacing that obligation.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2008 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 12, 21A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16

Key Cases
- R v Peter Michael Clark (CCA NSW, 15 March 1990, unreported)
- EF v R [2015] NSWCCA 36
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Gallagher (1991) 23 NSWLR 220
- R v Jurisic (1998) 45 NSWLR 209
- R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115
- Forti v R [2016] NSWCCA 127
- R v Ejefekaire [2016] NSWCCA 308