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Court of Criminal Appeal 1 February 2019

R v Campbell; R v Smith

[2019] NSWCCA 1

DrugsFirearms & weapons
FIREARMS OFFENCES

Citation: R v Campbell; R v Smith [2019] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 1 February 2019
Judges: Beazley P, Rothman J, R A Hulme J (principal judgment)

Background

Two respondents were sentenced in the District Court on 8 June 2015 following convictions for offences connected with the manufacture of methylamphetamine. One respondent also faced serious firearms charges, including possession of a firearm in contravention of a prohibition order and unauthorised possession of more than three unregistered firearms (at least one being a prohibited firearm). Both respondents had additional offences taken into account on Form 1 documents (a procedural mechanism allowing a court to take related uncharged or lesser offences into account when sentencing, without recording separate convictions).

The Crown appealed both sentences to the Court of Criminal Appeal, arguing the aggregate sentences imposed were manifestly inadequate. Neither party disputed the District Court's assessment of the objective seriousness of the individual offences.

The appeals were heard together, with R A Hulme J delivering the principal judgment. Beazley P agreed with those reasons and orders in full. Rothman J also agreed, but made additional observations on two specific issues.

  • Whether the aggregate sentences imposed on each respondent were manifestly inadequate
  • How the distinct criminality of drug supply and precursor offences should affect the notional accumulation of sentences when constructing an aggregate term
  • Whether comparisons between individual indicative sentences (the sentences assigned to each charge before aggregation) were relevant to assessing whether an aggregate sentence was proportionate to the totality of the criminality
  • The proper purposes of sentencing, including general and specific deterrence, in drug manufacturing offences
  • How offences listed on a Form 1 document are to be taken into account in sentencing
  • Whether delay in the Crown appeal should affect the Court's discretion to intervene
  • The operation of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), which prohibits a court on appeal from imposing a less severe sentence solely because the respondent faces being sentenced twice (the "double jeopardy" consideration)

Decision

The Court of Criminal Appeal allowed both Crown appeals and imposed increased aggregate sentences. The principal judgment of R A Hulme J held that the indicative sentences set for individual charges were inadequate and that the aggregate sentences failed to reflect the totality of each respondent's criminality. The Court found error in the sentencing approach below, which justified appellate intervention despite the delay between the original sentencing and the appeal.

On the drug manufacturing and precursor charges, the Court considered the distinct nature of each offence and the need for sentences to reflect both specific and general deterrence. The Court analysed how indicative sentences interact when constructing an aggregate term, confirming that comparison of individual indicative sentences assists in determining whether the aggregate is proportionate.

On the firearms charges against one respondent, Rothman J added observations that courts have historically treated such offences too leniently. His Honour noted that the circumstances of the firearms possession in this case, including possession alongside ammunition, prior criminal history, involvement in criminal activity, and the subject of a prohibition order, were particularly serious. Despite those observations, his Honour did not impose a sentence beyond the indicative terms proposed by R A Hulme J, and agreed that those proposed sentences were appropriate.

On s 68A of the Crimes (Appeal and Review) Act 2001, Rothman J observed that the provision prevents the Court from imposing a sentence less severe than it would otherwise consider appropriate on account of double jeopardy. His Honour noted some tension in the authorities about how this operates in practice, but ultimately did not need to resolve the conflict given his agreement with the proposed orders. Rothman J acknowledged the High Court's guidance in Farrah Constructions v Say-Dee Pty Ltd about intermediate courts not expressing final views on unsettled questions of law that may require authoritative resolution.

Orders Made

In respect of Campbell:
- Crown appeal against sentence allowed
- Aggregate sentence imposed in the District Court on 8 June 2015 quashed
- Respondent sentenced to an aggregate term of 11 years' imprisonment with a non-parole period of 7 years, dating from 29 April 2015 (eligible for parole from 28 April 2022)

In respect of Smith:
- Crown appeal against sentence allowed
- Aggregate sentence imposed in the District Court on 8 June 2015 quashed
- Respondent sentenced to an aggregate term of 16 years' imprisonment with a non-parole period of 10 years 6 months, dating from 29 April 2015 (eligible for parole from 28 October 2025)

Key Takeaways

  • The Court of Criminal Appeal confirmed that comparison of individual indicative sentences across charges is a relevant tool when assessing whether an aggregate sentence is proportionate to the totality of an offender's criminality.
  • Where drug supply and precursor offences involve distinct criminality, the notional accumulation of sentences when constructing an aggregate term must properly reflect that distinction.
  • Rothman J expressed the view that sentencing courts have historically treated firearms offences too leniently, particularly where a firearm is real, operational, possessed alongside ammunition, and held by a person subject to a prohibition order and engaged in broader criminal conduct.
  • Under s 68A of the Crimes (Appeal and Review) Act 2001, the Court on a Crown appeal cannot impose a sentence less severe than it would otherwise consider appropriate merely because the respondent faces a second sentencing; Rothman J noted that fixing a sentence at the lower end of an appropriate range does not contravene this provision.
  • Delay between the original sentencing and a Crown appeal is a relevant factor when the appellate court considers whether to exercise its discretion to intervene, but delay did not preclude intervention on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33
- Drugs Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW), ss 7(1), 51D(2)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346
- Dinsdale v The Queen (2000) 202 CLR 321
- DL (No 2) v The Queen (2018) 358 ALR 666
- El Jamal v R [2017] NSWCCA 243
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483
- Farrah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89
- House v The King (1936) 55 CLR 499
- Jeffree v R [2017] NSWCCA 72
- JM v R [2014] NSWCCA 297
- Kwok v R [2018] NSWCCA 200
- Luu v R [2008] NSWCCA 285
- Mack v R [2009] NSWCCA 216
- Parente v R [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Amurao [2005] NSWCCA 32
- R v Brown [2006] NSWCCA 249
- R v Deng [2007] NSWCCA 216