Citation: Le v R [2018] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 21 September 2018
Judges: Ward JA, Bellew J, Beech-Jones J
Background
The applicant pleaded guilty in the Local Court to two counts of supplying prohibited drugs on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). He also asked the sentencing court to take into account two further drug-related matters on a Form 1. The offending involved multiple undercover transactions supplying methylamphetamine and heroin to police operatives in Sydney between April and June 2015.
In August 2017, Judge Sutherland SC in the District Court sentenced the applicant to seven years' imprisonment on count 1 and six years' imprisonment on count 2, to be served concurrently. His Honour set a single non-parole period of five years and three months, which corresponded to 75% of the seven-year head sentence. No separate non-parole period was imposed for count 1.
The applicant sought leave to appeal on the basis that the sentencing judge had failed to impose a non-parole period in respect of count 1, as required by the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown ultimately accepted that error had occurred, and the matter proceeded to re-sentencing.
Legal Issues
- Whether the sentencing judge erred by failing to set a separate non-parole period for count 1, as required by ss 44 and 53 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge had instead imposed an aggregate sentence under s 53A of that Act, which would have been a permissible alternative approach
- What sentences were appropriate upon re-sentencing, having regard to the objective and subjective circumstances of the offending
Decision
The Court confirmed that error was established. Sections 44 and 53 of the Crimes (Sentencing Procedure) Act 1999 require a court to impose a separate non-parole period in respect of each individual sentence of imprisonment. The sentencing judge had not done so for count 1, nor had he imposed an aggregate sentence under s 53A, which would have required specific reference to that provision and the nomination of indicative sentences.
The Court noted that the sentencing judge himself acknowledged in correspondence with the Registrar that he had "overlooked the otiose but statutorily required fixing of a non-parole period with respect to the second count." The orders as signed were inconsistent with an aggregate sentencing approach, and the orders made in respect of the co-offender (which expressly invoked s 53A) reinforced that conclusion.
On re-sentencing, Bellew J assessed both counts as being at or about the mid-range of objective seriousness, with count 2 slightly more serious than count 1. The applicant was entitled to a 25% discount for his guilty pleas. However, his lengthy prior criminal history and the fact that the offending occurred while he was on parole were significant aggravating factors. There was little of substance in the applicant's subjective case, and his prospects of rehabilitation could not be assessed given his criminal history.
The fully concurrent sentences originally imposed were also addressed. Counsel for the applicant properly conceded before the Court of Criminal Appeal that some degree of accumulation was warranted to reflect the totality of the applicant's criminality. The re-sentences imposed partial accumulation accordingly.
Orders Made
The Court of Criminal Appeal made the following orders:
- Leave to appeal against sentence granted
- Appeal allowed
- Sentences imposed in the District Court quashed
- In substitution, the applicant was re-sentenced as follows:
- Count 1: non-parole period of 4 years and 6 months commencing 8 December 2015, expiring 7 June 2020; additional term of 1 year and 6 months expiring 7 December 2021
- Count 2: non-parole period of 4 years and 9 months commencing 8 April 2016, expiring 7 January 2021; additional term of 1 year and 9 months expiring 7 October 2022
- Total term of imprisonment: 6 years and 10 months
- Eligibility for parole: 7 January 2021; sentence expiry: 7 October 2022
Key Takeaways
- Under ss 44 and 53 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must impose a separate non-parole period for each individual sentence of imprisonment; a single "global" non-parole period across concurrent sentences does not satisfy this requirement.
- An aggregate sentence under s 53A is a permissible alternative, but the Court confirmed it requires express invocation of that provision and the nomination of indicative sentences; an inference that the judge intended to take that course will not be drawn merely from the overall structure of the sentencing remarks.
- The Court of Criminal Appeal confirmed that even where a sentencing judge later clarifies his or her intention in correspondence with the Registrar, the orders as signed govern, and a failure to comply with statutory requirements constitutes appealable error.
- Wholly concurrent sentences across multiple drug supply counts may not adequately reflect the totality of an offender's criminality; the Court re-sentenced with partial accumulation to address this.
- A letter of remorse from an offender who did not give evidence at sentence will be accorded only limited weight, though it may be accepted as some evidence of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
Cases:
- BB v R [2017] NSWCCA 189
- MLP v R [2014] NSWCCA 183
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- R v Younan [2018] NSWCCA 180
- RLS v R [2012] NSWCCA 236
- Vaiusu v R [2017] NSWCCA 71