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Court of Criminal Appeal 30 May 2018

Russell v R

[2018] NSWCCA 115

DrugsFraud & dishonesty
CRIMES SENTENCING SENTENCES SET ASIDE ON RE TAKEN INTO ACCOUNT ON RE SENTENCE

Citation: Russell v R [2018] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 30 May 2018
Judges: Payne JA, Johnson J, Adamson J

Background

The appellant was convicted of two offences: supplying a large commercial quantity of heroin (112.5 grams) between January and April 2016, and dealing with the proceeds of crime ($24,755) in November 2015. A further possession charge was taken into account on a Form 1 alongside the supply count. He entered guilty pleas and was sentenced by McLennan SC DCJ in the District Court on 3 October 2017.

The sentences announced by the sentencing judge were internally inconsistent and could not be entered into Justicelink, the NSW court and corrective services computer system. As a result, the system recorded a sentence that differed materially from what the judge had announced, including altering both the total term and the non-parole period.

The appellant sought leave to appeal on two grounds: manifest excess and error in the calculation and structure of the sentences. Between the original sentencing and the appeal, the appellant was diagnosed with terminal liver cancer and admitted to palliative care at Long Bay Hospital, with a life expectancy described in evidence as "weeks to months."

  • Whether the sentences imposed by the sentencing judge were irreconcilable with his stated intentions, rendering them invalid and requiring re-sentencing by the Court of Criminal Appeal.
  • Whether the Court of Criminal Appeal, on re-sentencing afresh, could receive and act upon fresh evidence of the appellant's terminal illness that was not available to the original sentencing judge.
  • What weight terminal illness and very short life expectancy should receive in the re-sentencing exercise, including the extent to which the statutory purposes of punishment remained relevant.

Decision

The structural errors in the original sentences

The Court identified three distinct problems with the original sentences. First, the sentence for count 1 commenced a full year after the non-parole period for count 2 had expired, in breach of section 47(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Second, the overall effective sentence announced did not accord with the individual sentences imposed for each count. Third, the sentences were wholly accumulated, despite the judge having stated that there would be some concurrency between them.

Because Justicelink could not process the non-compliant sentences, the system substituted different figures that altered both the total term and the non-parole period, and effectively negated the judge's finding of special circumstances. The respondent conceded that there was no straightforward method of correcting the errors to give effect to what the sentencing judge had intended. The Court found that, unlike discrete mathematical errors that can be corrected on appeal under the principles in Lehn v R, these errors were not amenable to correction and required the sentences to be set aside and the appellant re-sentenced.

Re-sentencing and the terminal illness

Because the Court was re-sentencing afresh under Kentwell v The Queen, the restrictions on fresh evidence applicable in ordinary appeals did not apply. The Court received uncontested evidence that the appellant had recently been diagnosed with terminal liver cancer, with a life expectancy of weeks to months, and had been admitted to palliative care.

Adamson J, with Payne JA and Johnson J agreeing, held that the purposes of punishment in section 3A of the Crimes (Sentencing Procedure) Act could be adequately served by a substantially reduced sentence. The Court found that the purpose of punishment had already been served by the approximately two years already spent in custody. General deterrence and denunciation were no longer appropriate vehicles in circumstances of terminal illness, specific deterrence was no longer relevant given the appellant's physical condition, and the harm to the community, while ordinarily a weighty factor in drug offences, was diminished in these highly exceptional circumstances. The Court also noted that, while the Parole Authority has a separate power under section 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) to release a dying or critically ill offender, the existence of that avenue did not affect the Court's own obligation to re-sentence on the evidence before it.

Orders Made

  • Leave to appeal granted on Ground 2.
  • Appeal allowed.
  • Sentences imposed by McLennan DCJ on 3 October 2017 quashed.
  • On each count, an aggregate sentence of 2 years and 11 months fixed, commencing 23 June 2016, with a non-parole period of 1 year, 11 months and 6 days expiring 29 May 2018.
  • The Court noted that, by operation of section 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the sentence was subject to a statutory parole order directing the appellant's immediate release to parole.

Key Takeaways

  • Where a sentencing judge's individual sentences and stated overall sentence are irreconcilable and cannot be corrected as discrete mathematical errors, the Court of Criminal Appeal has no alternative but to quash the sentences and re-sentence the offender afresh.
  • On a re-sentencing exercise under Kentwell v The Queen, the Court of Criminal Appeal is not bound by the restrictions on fresh evidence that apply in ordinary appeals, and may receive and act upon evidence of events that occurred after the original sentence.
  • A terminal illness diagnosis, reducing life expectancy to weeks or months, can substantially reduce the weight given to general deterrence, specific deterrence, and denunciation as sentencing purposes under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The availability of executive release mechanisms, such as the Parole Authority's power under section 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) to release dying or critically ill offenders, is relevant but does not displace the court's own obligation to sentence on the evidence before it.
  • Justicelink's inability to record a non-compliant sentence can have material consequences for an offender's custodial record, in this case producing a sentence that differed significantly from the one the sentencing judge had announced.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 193B(2)
- Crimes (Administration of Sentences) Act 1999 (NSW) ss 158, 160
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 33, 44(1), 47(4), 53A(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW) ss 10(1), 25(1)

Cases
- Dudgeon v R [2014] NSWCCA 301
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255