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11
Court of Criminal Appeal 28 March 2018

Kelly v R

[2018] NSWCCA 44

Drugs
CRIMINAL LAW SUPPLYING PROHIBITED DRUG ISSUE OF RE SENTENCE WHETHER LESSER SENTENCE WARRANTED CUSTODY

Citation: Kelly v R [2018] NSWCCA 44
Court: Court of Criminal Appeal, New South Wales
Date: 28 March 2018
Judge(s): Beazley P, Garling J, Hidden AJ

Background

The applicant was sentenced in the District Court for supplying methylamphetamine, an offence carrying a maximum of 15 years imprisonment under s 25(1) of the Drug Misuse and Trafficking Act 1985. He received a total term of three years, comprising a non-parole period of 20 months and a balance of 16 months, commencing 27 March 2017.

At the time of sentencing, the sentencing judge applied the principle in R v Clark (1990), which had been followed for nearly three decades. That principle held that drug trafficking in any substantial degree should ordinarily attract full-time imprisonment, absent exceptional circumstances. Seven months after the applicant was sentenced, the Court of Criminal Appeal overruled Clark in Parente v R [2017] NSWCCA 284, finding it incompatible with proper sentencing principle.

The applicant sought leave to appeal against his sentence on three grounds: that the sentencing judge took into account uncharged conduct, that insufficient credit was given for time spent in residential rehabilitation (as a form of quasi-custody), and that the sentence was infected by the now-overruled Clark principle.

  • Whether the sentencing judge erred by applying the Clark principle, subsequently overruled in Parente v R
  • Whether the period the applicant spent in a residential rehabilitation programme prior to sentence qualified as "quasi-custody," warranting a backdating of the sentence commencement date
  • Whether, upon re-sentencing, a lesser sentence than that originally imposed was warranted
  • What factual indicia are relevant to determining whether a rehabilitation programme constitutes quasi-custody

Decision

Ground 3: The Clark error. The Court unanimously agreed that the sentencing judge had erred by applying Clark, through no fault of his own. The Clark principle was good law at sentencing but was overruled before the appeal was heard. The error required the Court of Criminal Appeal to re-sentence the applicant.

Ground 1: Uncharged conduct. Because a re-sentence was required, Garling J declined to express a view on whether the sentencing judge impermissibly took uncharged conduct into account. Hidden AJ set out the applicable principles, but the Court resolved the matter without needing to determine this ground definitively.

Ground 2: Quasi-custody and backdating. This ground divided the Court. Hidden AJ and Beazley P found that the conditions of the applicant's bail, which required him to reside at the Byron Private Treatment Centre and authorised the centre to notify police if he self-exited (which would have constituted a bail breach), amounted to a real and substantial restriction on his liberty. They held that 21 days of residential rehabilitation should be recognised by backdating the sentence to 6 March 2017. Garling J disagreed, finding the material before the sentencing judge was insufficient to establish that the programme met the quasi-custodial threshold, particularly given the absence of detailed evidence or oral submissions on the point. By majority, the backdating was granted.

Re-sentencing quantum. Despite the Clark error, the majority (Hidden AJ, with Beazley P agreeing) concluded that no lesser term of imprisonment was warranted. After comparing comparable cases decided following Parente, the sentence of three years with a non-parole period of 20 months was found to appropriately reflect both the seriousness of the offence and the applicant's favourable subjective circumstances. Garling J would have dismissed the appeal entirely, seeing no basis for a lesser sentence and no basis for backdating.

The Court also took the opportunity to elaborate on the relevant factors for determining whether a rehabilitation programme constitutes quasi-custody. These include whether the course was residential, the strictness of its discipline, the nature and extent of restrictions on liberty, whether programmes were compulsory, restrictions on communications and travel, rules about visitors, and whether employment or volunteering was permitted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence confirmed at three years (non-parole period of 20 months, balance of 16 months)
  • Sentence commencement date varied to 6 March 2017 (backdated by 21 days)
  • Applicant's parole eligibility date: 5 November 2018

Key Takeaways

  • The Court of Criminal Appeal confirmed that the overruling of a sentencing principle between the date of sentence and the date of an appeal can constitute error warranting re-sentence, even where the original sentencing judge applied the law correctly at the time.
  • A period spent in residential rehabilitation prior to sentence may qualify as quasi-custody, justifying backdating of the sentence commencement date, but this is not automatic and depends on a factual assessment of the degree of constraint on the offender's liberty.
  • Garling J's reasons provide a detailed and useful catalogue of the indicia relevant to whether rehabilitation conditions constitute quasi-custody, including restrictions on communications, travel, visitors, and employment, and whether participation in programmes was compulsory.
  • The onus of establishing quasi-custodial conditions rests on the offender on the balance of probabilities, and the sufficiency of evidence and submissions on this point can be determinative, as demonstrated by Garling J's dissent on the backdating question.
  • Upholding the substantive sentence length, the Court of Criminal Appeal found that, even applying the corrected sentencing framework under Parente, the three-year term properly balanced the gravity of the offence against the applicant's positive subjective circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- Parente v R [2017] NSWCCA 284
- R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)
- R v Gardiner [2018] NSWCCA 27
- R v McHugh (1985) 1 NSWLR 588
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v Campbell [1999] NSWCCA 76
- R v Eastway (Court of Criminal Appeal, unreported, 19 May 1992)
- R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381
- Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155
- Truss v R [2008] NSWCCA 325
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bonett v R [2013] NSWCCA 234
- Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298
- Holyoak v R (1995) 82 A Crim R 502
- Quayle v R [2010] NSWCCA 16
- Smaragdis v R [2010] NSWCCA 276
- R v JCW [2000] NSWCCA 209; 112 A Crim R