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28
Court of Criminal Appeal 17 July 2019

Newman (a pseudonym) v R

[2019] NSWCCA 157

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ERROR CONCEDED AGREEMENT BETWEEN PARTIES [2014] HCA 37 CONSIDERED CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Newman (a pseudonym) v R [2019] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 17 July 2019
Judges: Basten JA; Hamill J; Lonergan J

Background

The appellant was convicted of three counts of drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), with nine additional matters taken into account on a Form 1. The offences involved methylamphetamine, MDMA, and cocaine. In November 2015, the District Court sentenced him to an overall term of 6 years 11 months, with an effective non-parole period of 4 years 6 months.

The appeal was filed significantly out of time. The appellant's solicitor explained the delay by reference to the time required to obtain funds from property sold by the NSW Crime Commission to cover appeal costs. Because the Director of Public Prosecutions did not oppose the extension, the Court granted it without needing to assess whether the reason offered would ordinarily justify such a lengthy delay.

A suppression order was made protecting the identities of the appellant and his father on safety grounds, resulting in the use of a pseudonym throughout proceedings.

  • Whether the sentencing judge erred by inferring, from a prior conviction, that the appellant had previously used human growth hormone when no evidence supported that inference.
  • Whether a conceded error in sentencing automatically requires resentencing, regardless of whether the error was "material" in the sense of having actually influenced the sentence imposed.
  • How the principle in Kentwell v The Queen (2014) 252 CLR 601 applies to the question of when a sentencing error warrants resentencing by the Court of Criminal Appeal.
  • What the appropriate resentence should be, including treatment of remorse, special circumstances, the aggregate sentence structure, and the discount for guilty plea and assistance.

Decision

The Court accepted that the sentencing judge erred in finding the appellant had been dishonest with the psychologist when he said he had never previously used growth hormones. The only evidence before the District Court of any prior involvement with such a substance was a 2000 Hornsby Local Court conviction for unlawful possession. The facts underlying that conviction were not before the District Court, and mere possession could not establish prior use. The respondent conceded the error.

A central issue was whether a conceded error automatically requires resentencing even if it cannot be shown to have affected the outcome. Basten JA examined Kentwell v The Queen closely and concluded that the relevant test is whether an error had the capacity to influence the sentencing discretion, not whether it can be proved to have actually done so. An error that was entirely extraneous and incapable of affecting the result does not cause the discretion to miscarry. His Honour observed that the earlier decision in Roberts (a Pseudonym) v R [2019] NSWCCA 102 should be understood in that light: the language of "materiality" is ambiguous and best avoided, but the proposition that capacity to affect the outcome is required remains good law.

On the facts, Basten JA expressed doubt about whether the growth hormone error had any real bearing on the sentences, noting there was reason to think the finding was effectively disregarded. Nevertheless, the Court proceeded to resentence on the basis of the concession, and Hamill J agreed that it was impossible to exclude the possibility that the finding of dishonesty had influenced the original sentence.

On resentencing, the Court retained the primary judge's favourable findings on remorse, rehabilitation prospects, and the 60% discount for guilty plea and assistance to authorities. Special circumstances were found based on the fact that this was the appellant's first custodial sentence, the potentially onerous nature of custody given his health, and the benefit of a longer parole period. An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), producing an effective non-parole period of 4 years 6 months, with the earliest parole eligibility date of 18 March 2020 remaining unchanged.

Orders Made

  • Extension of time to file the application for leave to appeal granted until 21 December 2018.
  • Leave to appeal granted.
  • Appeal allowed; original sentence set aside.
  • Resentence imposed:
  • For supplying methylamphetamine: fixed term of 2 years 4 months from 19 September 2015.
  • For supplying a commercial quantity of MDMA: non-parole period of 2 years 4 months and balance of term of 10 months (total 3 years 2 months), from 19 January 2016.
  • For supplying a large commercial quantity of cocaine: non-parole period of 3 years 6 months and balance of term of 2 years 1 month (total 5 years 7 months), from 19 September 2016.
  • Earliest date eligible for release on parole: 18 March 2020.

Key Takeaways

  • Under Kentwell v The Queen, the Court of Criminal Appeal must resentence when a sentencing error had the capacity to affect the exercise of the discretion. It does not need to be demonstrated that the error actually altered the outcome, but an error entirely incapable of influencing the result does not cause the discretion to miscarry.
  • The language of "materiality" in this context is ambiguous and, following Kentwell, is best avoided. Newman clarifies that the earlier decision in Roberts (a Pseudonym) v R should not be read as dispensing with the requirement that an error have the capacity to affect the sentencing outcome.
  • Inferring from a prior conviction for possession that an offender had previously used a substance was found to be an error where the facts of the prior offence were not before the sentencing court and possession alone did not establish use.
  • Remorse may be found as a mitigating factor even where the offender did not give evidence, provided the sentencing judge makes a positive finding on the material available. That finding, once made and unchallenged on appeal, may be maintained on resentencing.
  • Transparency in the construction of cumulative or aggregate sentences is required, and the use of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was endorsed in this matter by agreement of the parties and adoption by the Court.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Roberts (a Pseudonym) v R [2019] NSWCCA 102
- Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237
- House v The King (1936) 55 CLR 499
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- DL v The Queen [2018] HCA 32; 92 ALJR 764