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12
Court of Criminal Appeal 13 February 2017

R v JDX; JDX v R

[2017] NSWCCA 9

Drugs
CRIMINAL LAW SENTENCING PRINCIPLE OF TOTALITY ACCUMULATION OF SENTENCES WHETHER NON SENTENCING

Citation: R v JDX; JDX v R [2017] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 13 February 2017
Judge(s): Basten JA; Campbell J; N Adams J

Background

The offender pleaded guilty in January 2014 to two serious drug supply offences: supplying 1,142 grams of BZP and 294.5 grams of Nexus, each constituting a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). Each offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

At the time of sentencing in June 2015, the offender was already serving a 34-year murder sentence (non-parole period of 26 years). The District Court, applying the totality principle, imposed 12-year terms for each drug offence with non-parole periods of only 3 years, structured to commence in 2039 so as to partially accumulate on the tail end of the murder sentence.

In September 2016, the murder conviction was quashed and a verdict of acquittal entered. Under section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the commencement dates of the drug sentences were varied to 2014. This produced an effective minimum term of just 3 years and 6 months for the drug offences. Both the Director of Public Prosecutions and the offender then sought to challenge the sentences, with the Director arguing the non-parole periods were manifestly inadequate and the offender arguing the head sentences were inflated by the (now quashed) murder conviction.

  • Where sentences are accumulated on a subsequently quashed conviction, does the court have power under section 59 of the Sentencing Act to do more than vary the commencement dates of the remaining sentences?
  • Did the sentencing judge err by imposing equal sentences for two offences involving different drugs and substantially different quantities?
  • Were the non-parole periods manifestly inadequate once the murder sentence was removed?
  • Was the total head sentence inflated by the inclusion of the murder conviction in the offender's criminal record at the time of sentencing?
  • What weight should be given to rehabilitation evidence, discounts for early guilty pleas, and discounts for assistance to police?

Decision

The Court allowed both appeals and resentenced the offender. On the threshold power issue, the Court confirmed that section 59 of the Sentencing Act only permits variation of the commencement date of accumulated sentences, not the term or non-parole period, absent a separate appeal. Where a sentence was structured with totality in mind and the anchor sentence is later quashed, the result can be a non-parole period that is manifestly inadequate standing alone. A separate appeal is the correct vehicle to address that problem, and the Court noted that both parties should ideally have raised their respective grounds before or concurrently with the murder conviction appeal.

On the question of equal sentences for unequal quantities, the Court acknowledged that the quantity of BZP (count 1) was roughly four times that of Nexus (count 2). However, quantity is not the sole determinant when each offence already exceeds a prescribed large commercial threshold and the maximum penalty is life. The sentencing judge's approach was not shown to be erroneous on this basis alone.

The Court accepted the offender's argument that the head sentences had been set on a false basis. The murder conviction, since quashed, would have driven a higher starting point for the drug sentences by heightening the need for both general and specific deterrence. That error justified intervention. At the same time, the Crown's appeal on the non-parole periods was upheld: once the murder sentence was removed, the 3-year and 3-year 6-month non-parole periods were manifestly inadequate for offences of this gravity. The Court declined to exercise any residual discretion to leave the non-parole periods undisturbed.

On subjective matters, the Court acknowledged the early guilty pleas (attracting a 25% discount) and assistance to authorities (a further 10% discount). Basten JA, with whom N Adams J agreed, treated the rehabilitation evidence in a psychological report with considerable circumspection, noting that the favourable presentation in custody could not be assumed to translate to genuine post-release rehabilitation.

Orders Made

  • Leave granted to the offender to appeal against the sentences imposed on 5 June 2015.
  • Both the Director's appeal and the offender's appeal allowed.
  • Sentences imposed by the District Court quashed and the offender resentenced:
  • Count 1 (BZP supply): fixed term of 6 years imprisonment, commencing 1 February 2014, expiring 31 January 2020.
  • Count 2 (Nexus supply): 8 years 4 months imprisonment, with a non-parole period of 5 years 8 months commencing 1 August 2014 (expiring 31 March 2020) and a balance of term of 2 years 8 months expiring 30 November 2022.
  • Earliest date of eligibility for conditional release: 31 March 2020.

Key Takeaways

  • Section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits only variation of the commencement date of accumulated sentences when an anchor conviction is quashed; it does not allow the term or non-parole period to be altered without a separate appeal.
  • Where accumulated sentences were deliberately structured using the totality principle, quashing the anchor sentence can render both the head sentence and the non-parole period of the remaining sentences erroneous, warranting intervention through concurrent appeals.
  • A conviction that is later set aside may still have infected the sentencing exercise for other offences if it elevated the starting point for deterrence purposes; resentencing on the correct factual basis is the appropriate remedy.
  • Exceeding a prescribed large commercial quantity threshold for a prohibited drug brings a maximum of life imprisonment into play, and quantity above that threshold remains a relevant sentencing factor in terms of overall gravity, but equality of sentence across two such offences is not automatically erroneous simply because the raw quantities differ.
  • Expert psychological evidence of in-custody rehabilitation is to be approached with circumspection; apparent progress in a controlled custodial environment does not automatically translate to reliable prospects of post-release rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 32, 33, 44, 59
- Criminal Appeal Act 1912 (NSW), ss 5, 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25; Sch 1

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Betts v The Queen [2016] HCA 25
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Kentwell v The Queen (2014) 252 CLR 601
- Kural v R (1987) 162 CLR 502
- Pearce v The Queen (1998) 194 CLR 610
- R v Choi [2010] NSWCCA 318
- R v Gallagher (1991) 23 NSWLR 220
- R v Sukkar [2006] NSWCCA 92
- R v Tolmie (1994) 72 A Crim R 416
- Thomas v R (1992) 65 A Crim R 269