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8
Court of Criminal Appeal 9 November 2018

Thach v R

[2018] NSWCCA 252

DrugsFirearms & weapons
SENTENCING APPEAL AGAINST SENTENCE NON PAROLE PERIOD RATIO OF THE NON PAROLE PERIOD AND BALANCE OF TERM

Citation: Thach v R [2018] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 9 November 2018
Judge(s): Bathurst CJ, R A Hulme J, Davies J (unanimous)

Background

The applicant pleaded guilty in the District Court to a raft of serious drug and firearms offences arising from his role in a significant criminal syndicate. The offences included supplying large commercial quantities of methylamphetamine and heroin (totalling thousands of grams), possessing precursors for drug manufacture, possessing more than three unregistered and prohibited firearms, and possessing drug manufacture apparatus. A trailer searched by police was found to contain twelve firearms, including pistols, shortened rifles, shotguns, and silencers.

The applicant was sentenced by Judge English in the District Court on 16 December 2016 to an aggregate sentence of 18 years' imprisonment, with a non-parole period of 13 years and six months. The non-parole period represented approximately 75 percent of the total sentence, meaning the balance of term (the period after release on parole) was around 4 years and six months. The statutory default under the Crimes (Sentencing Procedure) Act 1999 is that the non-parole period should not be less than three-quarters of the total sentence unless there are "special circumstances."

The applicant sought leave to appeal on a single ground: that the sentencing judge erred by failing to find special circumstances, which would have permitted the court to set a shorter non-parole period relative to the total sentence, leaving a longer parole period.

  • Whether the sentencing judge erred by failing to find special circumstances under the Crimes (Sentencing Procedure) Act 1999 s 6
  • Whether the sentencing judge wrongly focused the special circumstances analysis on whether the offender needed an extended post-release supervision period, rather than on the proper criteria
  • Whether the sentencing judge incorrectly assumed that appropriate treatment or rehabilitation programs would be available in custody
  • Whether, even if error were established, the Court of Criminal Appeal would impose a lesser sentence in the exercise of its independent sentencing discretion

Decision

Davies J (with Bathurst CJ and R A Hulme J agreeing) granted leave to appeal but dismissed the appeal. The Court acknowledged the applicant's arguments about the sentencing judge's reasoning on special circumstances but ultimately concluded that even if some error in that reasoning could be identified, it would not result in a lesser sentence.

On the question of whether the sentencing judge had erred, the Court examined the remarks on sentence carefully. The applicant contended that the sentencing judge had focused unduly on whether the offender required an extended supervision period after release, and had assumed treatment was available in custody. The Court accepted that these could constitute errors in reasoning about special circumstances, but found that any such error did not warrant intervention on the facts.

Critically, Davies J held that even conducting an independent re-sentencing exercise, no lesser sentence was warranted. The Court characterised the offending as involving a significant drug operation with large quantities of two different prohibited drugs, precursors, and firearms, in which the applicant played a significant role warehousing those materials for a syndicate. Those objective features supported the aggregate sentence and non-parole period as imposed.

The Court also addressed the indicative sentences, noting that while there is no right of appeal from an indicative sentence in an aggregate sentencing structure, the indicative sentences can inform whether error exists in the aggregate. The high degree of concurrence between the indicative sentences and the aggregate sentence supported the conclusion that neither the sentence nor the non-parole period was manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a sentencing judge's reasoning on special circumstances may be flawed, the appeal will not succeed if the appellate court, conducting its own independent sentencing exercise, concludes that no lesser sentence was warranted.
  • A finding that the sentencing judge misdirected herself on the criteria for special circumstances does not automatically lead to resentencing; the ultimate question remains whether the aggregate sentence and non-parole period are appropriate in light of all the circumstances.
  • Indicative sentences imposed as part of an aggregate sentence cannot themselves be appealed, but they remain relevant to assessing whether an error has infected the aggregate sentence.
  • Where offending involves warehousing very large quantities of prohibited drugs and numerous prohibited firearms for a criminal syndicate, the objective seriousness of the conduct will weigh heavily against finding that a longer balance of term is needed.
  • The Court of Criminal Appeal confirmed that the standard non-parole period is a relevant reference point in assessing the objective seriousness of offences carrying that legislated benchmark, consistent with the approach in Muldrock v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 6

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
- R v Fidow [2004] NSWCCA 172
- Caristo v R [2011] NSWCCA 7
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- R v Lulham [2016] NSWCCA 287