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Court of Criminal Appeal 28 May 2018

Remington v R

[2018] NSWCCA 98

Drugs
CRIMINAL LAW SENTENCE APPEAL

Citation: Remington v R [2018] NSWCCA 98
Court: Court of Criminal Appeal, NSW
Date: 28 May 2018
Judges: Bathurst CJ, Fullerton J (primary reasons), Campbell J

Background

The appellant was arrested in August 2016 in the car park of a correctional centre, where she had driven to visit her incarcerated partner. A search of her person and vehicle uncovered methamphetamine and buprenorphine, which she admitted she intended to give to her partner, as well as a larger quantity of methamphetamine on the back seat that she said was for her own use and occasional sharing with friends. Tobacco intended for the prison was also found in the car.

In August 2017, the appellant pleaded guilty to three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), along with three further offences dealt with by certificate: bringing tobacco into a place of detention, driving whilst suspended, and two counts of failing to appear on bail. The sentencing judge imposed concurrent terms of two years imprisonment with a 14-month non-parole period for the supply counts, together with additional fixed terms for the remaining offences, all running concurrently.

The appellant sought leave to appeal on the basis that the sentencing judge had erred in characterising her conduct as trafficking to a substantial degree, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in finding the drug supply offences constituted trafficking "to a substantial degree" as required by the principle established in R v Clark
  • Whether the sentences imposed for the supply offences (and certain other counts) were manifestly excessive, being unreasonable and plainly unjust
  • Whether the sentencing judge failed to properly differentiate between the three supply offences when imposing identical sentences
  • Whether a non-custodial sentence, or at minimum immediate release to parole, was appropriate given the appellant's subjective circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the first ground, finding that the sentencing judge had erred in characterising the offending as trafficking to a substantial degree. Fullerton J noted that this finding alone was sufficient to dispose of the appeal, but added that five of the six custodial sentences were also manifestly excessive on their own terms, having regard to both the objective seriousness of the individual offences and the appellant's personal circumstances.

The imposition of identical two-year sentences across all three supply counts drew particular criticism. Fullerton J found this approach reflected a failure to assess the objectively different level of criminality in each offence before determining how the sentences should be served, in breach of the principle confirmed by the High Court in Pearce v The Queen (1998) 194 CLR 610. The three offences involved materially different quantities and different drugs, yet received identical treatment.

The only sentence the Court considered sustainable was the six-month fixed term for driving whilst suspended. The appellant's record of repeated breaches of road transport law, and the leniency previously extended to her, justified that term.

The Court took into account the appellant's substantial subjective circumstances: a history of drug dependency, homelessness at the time of offending, mental health issues, separation from her children, and strong evidence of genuine rehabilitation progress through the OnTRACC program. On the basis of an updated community support report and a letter from the appellant, the Court re-sentenced her to a term that provided for immediate release to parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences for the supply offences and the majority of remaining counts quashed
  • Appellant re-sentenced to an effective term of imprisonment entitling her to immediate release to parole (effective 12 March 2018)

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must correctly assess whether drug supply offending constitutes trafficking "to a substantial degree" under R v Clark before applying the sentencing framework that flows from that characterisation.
  • Imposing identical sentences across multiple offences with objectively different levels of criminality may constitute a breach of the Pearce principle, which requires each offence to be assessed individually before considering questions of accumulation or concurrence.
  • A sentence may be manifestly excessive not only because its length is disproportionate to the individual offence, but also because the sentencing judge failed to properly engage with both the objective circumstances of each count and the offender's subjective circumstances.
  • Evidence of genuine rehabilitation, community support programs, housing prospects, and family reconnection formed part of the basis on which immediate release to parole was ordered upon re-sentencing.
  • The six-month term for driving whilst suspended was upheld, demonstrating that a pattern of repeated offending in the same category can sustain a sentence even where other counts are found to be excessive.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Summary Offences Act 1988 (NSW), s 27E(2)(b)
- Road Transport Act 2013 (NSW), s 54(3)(a)
- Bail Act 2013 (NSW), s 79(1), s 79(4)

Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Clark (NSWCCA, 15 March 1990, unreported)
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205