AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 29 June 2018

Fabre v R

[2018] NSWCCA 133

Drugs
APPEALS PROBATION AND PAROLE PAROLE PERIOD MITIGATING FACTORS PLEA OF GUILTY APPEAL AGAINST SENTENCE

Citation: Fabre v R [2018] NSWCCA 133
Court: Court of Criminal Appeal (NSW)
Date: 29 June 2018
Judge(s): Basten JA (single judge)

Background

The appellant was sentenced by the Drug Court in February 2017 in relation to 16 offences. The Drug Court imposed an aggregate sentence of 20 months imprisonment, suspended to allow participation in a diversionary rehabilitation program. The appellant absconded on the first day of the program, and his participation was terminated.

When the matter returned to the Drug Court in September 2017, the appellant faced 30 offences in total, including two new charges arising from his April 2017 apprehension. The Drug Court imposed a final aggregate sentence of 30 months with a non-parole period of 20 months. The sentence was backdated to February 2017 by agreement.

The appellant appealed on three grounds: that the sentencing judge failed to consider maximum penalties for the offences; that the judge failed to apply a proper utilitarian discount for guilty pleas on four specific matters; and that certain indicative sentences were excessive given the jurisdictional limits of the Local Court.

  • Whether the Drug Court appeal was correctly framed, and whether leave to appeal was required under the Criminal Appeal Act 1912 (NSW)
  • Whether the sentencing judge erred by failing to refer to, and take into account, the maximum penalties for the relevant offences
  • Whether the sentencing judge erred by failing to apply a discount for the utilitarian value of guilty pleas to four specified offences
  • Whether any such error could have affected the aggregate sentence
  • Whether the indicative sentences on certain offences were excessive in light of the Local Court's jurisdictional limits
  • Whether the Court should make a parole direction on appeal to remedy the sentencing judge's failure to direct the appellant's release under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Nature of the appeal and composition of the Court. The parties had incorrectly framed the application as an appeal under s 5(1)(c) of the Criminal Appeal Act 1912, which applies to convictions on indictment. Because the Drug Court was exercising Local Court jurisdiction, the correct provision was s 5AA(1) read with s 5AF. No leave to appeal was required. As no issue of principle arose and it was not in the interests of justice to convene a full bench, the appeal was determined by a single judge.

Ground 1 (maximum penalties). This ground was abandoned at the hearing once the appellant's counsel accepted that the Crown bundle did in fact contain the relevant maximum penalties. The Court confirmed that a sentencing judge's failure to expressly mention maximum penalties does not, of itself, constitute error, provided the sentences imposed fall within those maxima.

Ground 2 (guilty plea discounts). The sentencing judge's remarks at the initial sentence hearing appeared to acknowledge only the subjective element of contrition for four offences dealt with on that occasion, without expressly applying a utilitarian discount. Although the final sentence judgment contained language suggesting a full discount had been applied, that passage was ambiguous as to whether it extended to all four disputed matters. The Court accepted that an error in principle was established, in that the guilty pleas may not have attracted a proper utilitarian discount. However, the Court found that the indicative sentences for those four offences were within range even without the discount, and that the error could not have produced a different aggregate sentence. No re-sentencing was required.

Ground 3 (excessive indicative sentences). The appellant argued that two indicative sentences were excessive because they approached the maximum penalty available in the Local Court's jurisdiction. The Court rejected this ground. The principle that only the most serious conceivable offence of its kind should attract the maximum is directed at the maximum penalty for the offence generally, not merely at the ceiling of the Local Court's jurisdictional limit. Less serious offences may properly attract indicative sentences at or near the Local Court's jurisdictional ceiling, depending on their objective seriousness. The indicative sentences were found to be within range.

Parole direction. The parties agreed after the hearing that no order was necessary to remedy the judge's failure to direct the appellant's release on parole. The Court noted unresolved questions about whether the transitional provisions of the Crimes (Administration of Sentences) Act 1999 (NSW) applied to pre-commencement sentences, and whether s 43 of the Crimes (Sentencing Procedure) Act preserved a power to correct the omission. In light of the parties' agreement, no order was made.

Orders Made

  • The aggregate sentence imposed on the appellant on 8 September 2017 by the Drug Court is confirmed.
  • The appeal is dismissed.

Key Takeaways

  • No leave to appeal is required under ss 5AA and 5AF of the Criminal Appeal Act 1912 (NSW) for an appeal against a Drug Court sentence; earlier decisions suggesting otherwise were expressly identified as erroneous.
  • A sentencing judge's failure to expressly refer to maximum penalties does not constitute legal error, provided the sentences imposed fall within those maxima and the inference is available that the judge had regard to them.
  • Where an error in principle regarding a guilty plea discount is established, it will not warrant intervention unless the error could have produced a different result in the aggregate sentence actually imposed.
  • Under the Local Court jurisdictional sentencing framework, the principle that only the most serious offence of its type should approach the maximum penalty applies to the statutory maximum for the offence, not merely to the upper ceiling of Local Court jurisdiction. Indicative sentences may properly approach that ceiling for offences of significant objective seriousness within the Local Court's competence.
  • Uncertainty remains about whether the statutory parole order regime introduced by s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) applies to offenders sentenced before its commencement, particularly where the sentencing judge failed to make a direction under the former s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 43, 50, 53B
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158; Sch 5, Pt 23
- Drug Court Act 1998 (NSW), ss 7A, 10, 11, 12
- Interpretation Act 1987 (NSW), s 30
- Parole Legislation Amendment Act 2017 (NSW)

Cases
- Canzius v R [2017] NSWCCA 177
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302
- Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56
- Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
- Kerr v R [2016] NSWCCA 218
- Lee, Matthew v R [2016] NSWCCA 146
- Moses v R [2015] NSWCCA 218; 253 A Crim R 467
- Mundine v R [2017] NSWCCA 97
- PG v R [2017] NSWCCA 179
- R v Keyte (2000) 78 SASR 68
- R v Robinson [2014] NSWCCA 12
- Regina v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Willmott v R [2016] NSWCCA 256
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460