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Court of Criminal Appeal 3 July 2019

Huang v R

[2019] NSWCCA 144

DrugsFirearms & weapons
SENTENCING APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE FORM 1 MATTERS NON PAROLE PERIOD

Citation: Huang v R [2019] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 3 July 2019
Judges: Bathurst CJ, Bell P, Hamill J

Background

The applicant pleaded guilty in the Local Court to two offences: supply of not less than a large commercial quantity of methylamphetamine (5.4 kilograms), and possession of a prohibited firearm. He was sentenced by a District Court judge in March 2018. In connection with Count 1, the applicant also asked the court to take into account five further offences listed on a Form 1 document (a procedure under the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows additional offences to be acknowledged at sentencing without separate prosecution).

The sentencing judge imposed 11 years and 6 months on Count 1 (with a non-parole period of 8 years, 6 months and 25 days commencing April 2017) and 3 years on Count 2 (with a non-parole period of 2 years and 3 months commencing April 2016). The Count 1 sentence was accumulated by one year on Count 2, producing an effective total sentence of 12 years and 6 months and a total non-parole period of 9 years, 6 months and 25 days.

The applicant sought leave to appeal against sentence on multiple grounds, including errors in fact-finding, the treatment of Form 1 matters, the failure to find special circumstances, and manifest excess.

  • Whether the sentencing judge's use of the phrase "beyond reasonable doubt" when rejecting the applicant's evidence revealed a fundamental misapprehension that the applicant bore a criminal standard of proof at sentencing.
  • Whether the sentencing judge erred by adding the Form 1 allowance to the sentence after applying the guilty plea discount, rather than incorporating it before the discount was calculated.
  • Whether the accumulated sentences produced a non-parole period exceeding the statutory 75% ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether that excess was a sentencing error.
  • Whether the sentencing judge erred in failing to find special circumstances justifying a non-parole period below the statutory ratio.

Decision

Fact-finding and standard of proof: The Court found that the sentencing judge's reference to not accepting the applicant's evidence "beyond reasonable doubt" was infelicitous, but did not reveal a fundamental error. Read in the context of the remarks on sentencing as a whole, the phrase amounted to an emphatic rejection of the applicant's account rather than an indication that the judge had misapplied the burden of proof. This ground of appeal failed.

Form 1 procedure: The Court held that the sentencing judge erred in his treatment of the Form 1 matters. The correct approach requires that any uplift to sentence for Form 1 offences be incorporated into the total sentence first, and the guilty plea discount then applied to the whole. By instead arriving at the discounted sentence for Count 1 and then adding one year for the Form 1 matters, the judge effectively failed to discount the Form 1 component at all. This constituted an error of principle.

Non-parole period and statutory ratio: The Court found that the arithmetic effect of accumulating the two sentences was to produce a total non-parole period exceeding 75% of the total head sentence. Under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period above this ratio requires the sentencing judge to find and articulate special circumstances. The sentencing judge's remarks contained no indication that he had adverted to this consequence or intended to exceed the statutory ratio. This was a further error.

Resentencing: These two errors together required the Court to resentence the applicant. Bell P (with whom Bathurst CJ and Hamill J agreed) imposed an aggregate sentence of 10 years and 6 months with a non-parole period of 7 years, 10 months and 14 days, commencing 13 April 2016. No special circumstances were found. The first eligible parole date was fixed at 27 February 2024, an earlier date than under the original sentences.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentences set aside.
  • Applicant resentenced to an aggregate term of 10 years and 6 months' imprisonment, commencing 13 April 2016, with a non-parole period of 7 years, 10 months and 14 days.
  • First eligible parole date: 27 February 2024.
  • Indicative individual sentences: Count 1 (firearm possession) of 2 years and 3 months with a non-parole period of slightly more than 18 months; Count 2 (drug supply) of 8 years and 3 months with a non-parole period of approximately 6 years.

Key Takeaways

  • Under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), Form 1 matters must be factored into the total sentence before any guilty plea discount is applied. Adding a Form 1 uplift after the discount has already been calculated deprives the offender of a discount on that component and constitutes an error of principle.
  • A sentencing judge's use of "beyond reasonable doubt" when rejecting defence evidence at sentencing is not automatically fatal to the sentence. The Court of Criminal Appeal will look at the remarks on sentencing as a whole to determine whether the language reflected a genuine misapplication of the standard of proof or was merely emphatic language.
  • Where accumulated sentences arithmetically produce a non-parole period exceeding 75% of the total head sentence, the sentencing court must affirmatively advert to that consequence and express a basis for exceeding the statutory ratio. Silence on the point constitutes error.
  • In resentencing following identified errors, the Court applied an aggregate sentencing approach under s 53A of the Crimes (Sentencing Procedure) Act, providing indicative individual sentences for each count as required by that provision.
  • The decision applies and confirms the reasoning in Lehn v R (2016) 93 NSWLR 205 on the relationship between accumulated sentences and the statutory non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32(1), 44, 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- GP v R [2017] NSWCCA 200
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Bavadra [2000] NSWCCA 292; 115 A Crim R 154
- R v Vougdis (1989) 41 A Crim R 125
- RL v R [2018] NSWCCA 274
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284