AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 15 December 2017

Linden v R

[2017] NSWCCA 321

Drugs
SENTENCE APPEAL FURTHER OFFENCE TAKEN INTO ACCOUNT ERROR CONCEDED BY CROWN SENTENCE

Citation: Linden v R [2017] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 15 December 2017
Judges: Simpson JA, R A Hulme J, Wilson J

Background

The applicant pleaded guilty in the District Court to two counts of ongoing supply of methylamphetamine for financial or material reward, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from nine separate supply transactions occurring over roughly two months. Because s 25A requires three or more supply occasions within any 30-day period, the conduct was split across two separate charges.

The applicant also had a single supply offence that was not separately prosecuted but was "taken into account" under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A "take into account" (TIA) mechanism allows a court, with the offender's consent, to acknowledge a further offence when imposing sentence on a principal charge, without recording a separate conviction for that offence. At first instance, the District Court attached the TIA offence to the wrong charge, a procedural error the Crown later conceded.

The applicant appealed against sentence. The Crown conceded the TIA error, which obliged the Court of Criminal Appeal to re-sentence.

  • Whether the sentencing judge erred by taking into account the additional supply offence against a charge other than the principal offence, contrary to s 33 of the Crimes (Sentencing Procedure) Act 1999
  • Whether that error, once established, required the Court of Criminal Appeal to re-sentence the applicant
  • What the correct sentence should be on re-sentencing, having regard to the objective seriousness of the offending and the applicant's extensive subjective mitigating circumstances

Decision

The Court confirmed the error in Ground 1. Although the Crown conceded the point, the Court described it as "error of the most technical kind," because the two ongoing supply charges were virtually indistinguishable in objective seriousness and could have attracted similar sentences regardless of which charge carried the TIA offence. Nonetheless, established authority in Kentwell v The Queen (2014) 252 CLR 601 required that any established sentencing error result in re-sentencing.

On re-sentencing, the Court weighed the objective gravity of the offending heavily. The applicant operated a relatively sophisticated supply network on Sydney's Northern Beaches, using coded language to avoid detection, maintaining a regular customer base, and obtaining meaningful quantities of methamphetamine at short notice for profit. The Court considered the offences fell only slightly below the mid-range of seriousness, against a maximum penalty of 20 years imprisonment.

The applicant presented a powerful subjective case. Relevant factors included early guilty pleas, genuine remorse, no prior criminal history, good rehabilitation prospects, and a low risk of re-offending. Of particular significance was the applicant's severe childhood trauma (sexual abuse from ages 5 to 14), a diagnosis of Post-Traumatic Stress Disorder, Persistent Depressive Disorder and Substance Use Disorder, and the medical opinion that custody would be more onerous for her than for the average prisoner. The applicant's drug use, which motivated the supply offending, was itself rooted in that childhood trauma. The Court also weighed the serious welfare implications for her two young sons, both assessed as having special needs and themselves showing signs of trauma.

The Court declined to impose a lesser total sentence than that imposed at first instance, finding the original overall term of 3 years and 3 months with an 18-month non-parole period was already markedly lenient. The technical error was corrected by redistributing the sentences between the two sequences, while keeping the total effective sentence and non-parole period unchanged. The applicant's counsel conceded that no Parker warning (a procedural requirement before increasing a sentence on appeal) was needed, as the total effective sentence would not increase.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court with respect to two counts of ongoing supply of a prohibited drug, taking into account one count of supply of a prohibited drug, quashed
  • For Sequence 1 (taking into account the supply offence): 3 years imprisonment, commencing 18 April 2017 and expiring 17 April 2020, with a non-parole period of 1 year and 3 months expiring 17 July 2018
  • For Sequence 3: 12 months imprisonment, commencing 18 January 2017 and expiring 17 January 2018

Key Takeaways

  • Under s 33 of the Crimes (Sentencing Procedure) Act 1999, a further offence taken into account must be attached to the principal offence on the indictment. Attaching it to a different charge constitutes a sentencing error.
  • Even a purely technical sentencing error of this kind is sufficient to enliven the Court of Criminal Appeal's obligation to re-sentence: Kentwell v The Queen (2014) 252 CLR 601 applies.
  • Childhood trauma and its downstream effects on mental health and substance use are recognised mitigating factors going to an offender's moral culpability, following Bugmy v The Queen (2013) 249 CLR 571, though their weight is reduced where the offending was considered and organised rather than impulsive.
  • A sentence that is already markedly lenient sets a floor on re-sentencing: the Court of Criminal Appeal will not impose a lesser sentence it considers manifestly inadequate to reflect the criminality involved.
  • No Parker warning is required on appeal where the total effective sentence will not increase despite individual sequence sentences being adjusted.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Criminal Appeal Act 1912 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Edwards (1996) 90 A Crim R 510
- R v Wirth (1976) 14 SASR 291