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Court of Criminal Appeal 15 December 2017

Stemler v R

[2017] NSWCCA 320

Drugs
CRIMINAL APPEAL SENTENCE APPEAL QUESTION OF LENIENCY TO BE ALLOWED DETERMINATION OF NON PAROLE PERIOD WHETHER NON

Citation: Stemler v R [2017] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 15 December 2017
Judges: Bathurst CJ, R A Hulme J, Wilson J

Background

The applicant was sentenced in the District Court for two drug offences arising from his involvement in an attempt to take possession of approximately 1,986 grams of cocaine (at 71.2% purity) that had been imported from the United States concealed in toner cartridges. Border Force intercepted the consignment and the Australian Federal Police conducted a controlled delivery operation. The applicant was observed at the delivery address and played an active role in the attempted pick-up, which resulted in his arrest.

He was sentenced for a Commonwealth offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug (cocaine) under s 307.6 of the Criminal Code Act 1995 (Cth), carrying a maximum of 25 years imprisonment, and a State offence of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum of 15 years. Two possession offences were taken into account on a Form 1 document.

Following the original sentence hearing, the sentencing judge corrected an error: the announced head sentence of 11 years for the Commonwealth offence had not incorporated the discount for the early guilty plea, and was reduced to 7 years and 9 months. The non-parole period (NPP), initially announced at 5 years and 9 months, was later reduced by the judge in chambers to 5 years and 3 months, without explanation on the record. The applicant sought leave to appeal against the Commonwealth sentence.

  • Whether the sentencing judge erred in concluding the applicant was entitled to "no leniency" on account of his prior conviction and the fact he was on a good behaviour bond at the time of offending
  • Whether the sentencing judge impermissibly applied a "two-stage" approach to sentencing the Commonwealth offence when finding special circumstances to reduce the NPP, contrary to Part 1B of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge failed to give adequate effect, in fixing the NPP, to the finding that the applicant's guilty plea demonstrated a willingness to facilitate the course of justice

Decision

On the first ground, the Court accepted that the sentencing judge's language ("not entitled to any leniency") was not an error in substance. R A Hulme J noted the full passage made clear the judge had regard to both the prior conviction and the fact the applicant was on conditional liberty at the time of offending. While it would have been more conventional to treat the bond as an aggravating factor, the practical effect of denying leniency on that basis was the same.

On the second ground, the Court rejected the argument that the sentencing judge had impermissibly adopted a two-stage approach. The Court found no error simply because the head sentence was corrected by a reduction of approximately 23% while the NPP was reduced by only 8.7%. To reason from those proportions would endorse sentencing by equation, which is inconsistent with the instinctive synthesis approach confirmed in Markarian v The Queen.

The third ground succeeded. The Court found that the lack of transparency in the process by which the judge arrived at the final NPP of 5 years and 3 months established error. The in-chambers reduction from the announced NPP of 5 years and 9 months was unexplained on the record, making it impossible to determine whether the NPP properly reflected the applicant's willingness to facilitate the course of justice through the early plea.

Having found error, the Court re-exercised the sentencing discretion. It concluded no lesser head sentence than 7 years and 9 months was warranted, given the seriousness of the offence, the planning involved, the street value of the cocaine exceeding $1 million, the financial motive, and the fact the applicant was on a bond at the time. However, the Court reduced the NPP to 5 years, finding that period appropriately reflected the early plea and the applicant's acceptance of responsibility.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The District Court sentence for the Commonwealth offence quashed and replaced with imprisonment for 7 years and 9 months, commencing 2 December 2015 and expiring 1 September 2023
  • Non-parole period of 5 years specified, expiring 1 December 2020

Key Takeaways

  • A sentencing judge's failure to explain, on the record, how a non-parole period was arrived at can constitute error, even where the arithmetic of the adjustment might appear consistent with the overall sentence.
  • The Court of Criminal Appeal confirmed that reasoning from mathematical ratios between head sentence reductions and NPP reductions is inconsistent with the instinctive synthesis approach to sentencing established in Markarian v The Queen.
  • Treating an offender as not entitled to "leniency" because of a prior conviction and the fact of offending while on conditional liberty is not, in itself, an error, provided the practical effect is equivalent to recognising those matters as aggravating.
  • Under the Commonwealth sentencing framework in Part 1B of the Crimes Act 1914 (Cth), a finding of special circumstances that reduces the NPP does not automatically amount to a prohibited two-stage approach to sentencing.
  • In re-sentencing, the Court held that a generous plea discount (approximately 29.5% off the head sentence) did not require a further reduction to the head sentence even where the applicant had a relatively strong subjective case, given the gravity of the offending.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Crimes Act 1914 (Cth), Part 1B, s 16A(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Weininger v The Queen (2003) 212 CLR 629
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v McNaughton (2006) 66 NSWLR 566
- Cahyadi v R [2007] NSWCCA 1
- Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247
- R v Kain [2004] NSWCCA 143
- R v A [2004] NSWCCA 292
- R v Van Hong Pham [2005] NSWCCA 94