Citation: Casella v R [2019] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 29 August 2019
Judges: Bathurst CJ; Beech-Jones J; N Adams J
Background
The appellant was a Griffith winemaker who pleaded guilty to concealing a serious indictable offence under s 316(1) of the Crimes Act 1900 (NSW). The offence arose from his failure, between January and September 2014, to bring information to police about five individuals he knew had been cultivating cannabis in commercial and large commercial quantities. The maximum penalty for the concealment offence at the time was 2 years imprisonment.
The appellant had initially faced more serious charges, including cultivating a commercial quantity of a prohibited plant and participating in a criminal group, but pleaded guilty to the concealment charge midway through trial. The sentencing judge imposed 8 months full-time imprisonment with a non-parole period of 6 months.
The appellant sought leave to appeal on three grounds: denial of procedural fairness regarding alternatives to full-time custody; the sentencing judge's failure to properly consider those alternatives; and manifest excess.
Legal Issues
- Whether the appellant was denied procedural fairness because alternatives to full-time imprisonment were not adequately raised and explored during the sentencing proceedings
- Whether the sentencing judge erred by failing to genuinely consider alternatives to full-time custody as required by s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentence of 8 months full-time imprisonment was manifestly excessive
- Whether, on resentencing, an Intensive Correction Order (ICO) was the appropriate disposition
Decision
Procedural fairness: The Court rejected the procedural fairness ground. Senior counsel for the appellant at first instance had made submissions both in chief and in reply that acknowledged the possibility of a custodial sentence. The Crown did not conduct proceedings on any basis that excluded custody. The sentencing judge was also under no obligation to disclose any preliminary views he held about the appropriate sentence.
Failure to consider alternatives: The Court found no error on this ground. The sentencing judge had at least mechanically satisfied the requirements of s 5 of the Crimes (Sentencing Procedure) Act by stating that he had considered all possible alternatives and that no penalty other than imprisonment was appropriate. He also stated he had considered alternatives to full-time custody before imposing it.
Manifest excess: The Court distinguished between the length of the sentence and the manner of its service. A term of 8 months (after a 20% guilty plea discount) was described as severe but not, in isolation, manifestly excessive, given the seriousness of the concealed offences. However, ordering that sentence to be served by way of full-time custody was manifestly excessive. The Court identified four factors: the 8-month term represented a substantial proportion of the 2-year maximum; the appellant's 1995 prior convictions attracted little weight for personal deterrence; the appellant's poor health and significant community contributions were substantial mitigating factors; and the sentence compared unfavourably with sentences imposed on co-offenders.
Resentencing and ICO: The Court resentenced the appellant to 6 months imprisonment to be served by way of an Intensive Correction Order. Beech-Jones J added observations about the recently decided R v Fangaloka [2019] NSWCCA 173, noting that s 66(2) of the Crimes (Sentencing Procedure) Act does not necessarily preclude an ICO where the assessment of reoffending risk is neutral rather than positively favouring an ICO. N Adams J agreed with those observations, though both judges left the broader correctness of Fangaloka unresolved, as it was not fully argued.
Orders Made
No orders were made in this decision.
Key Takeaways
- A sentencing judge satisfies the s 5 Crimes (Sentencing Procedure) Act obligation to consider alternatives to imprisonment by at minimum stating, consistently with the provision, that all alternatives have been considered and that none is appropriate.
- Manifest excess in a sentence can arise not from the length of the term alone but from the mode of custody ordered, particularly where the term is a significant fraction of the statutory maximum and the offender's subjective case is strong.
- Disparity between a sentence and those imposed on co-offenders is a legitimate factor in assessing manifest excess, where the comparison reveals an uncomfortable inconsistency.
- Under s 316(1) of the Crimes Act 1900, the gravity of the concealed offence is a material consideration in assessing the objective seriousness of the concealment charge itself.
- The Court of Criminal Appeal left open the question of whether R v Fangaloka correctly states the effect of s 66(2) of the Crimes (Sentencing Procedure) Act, specifically whether an ICO is precluded whenever the risk-of-reoffending assessment does not positively favour it over full-time custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 316(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 66
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 33
Cases:
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
- Pantorno v The Queen (1989) 166 CLR 466
- Tweedie v R [2015] NSWCCA 71
- Dang v R [2014] NSWCCA 47
- R v Dennis [2015] NSWCCA 297
- Paul Campbell (a pseudonym) v R [2018] NSWCCA 87
- Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Hughes v R [2018] NSWCCA 2
- R v Fangaloka [2019] NSWCCA 173
- Taylor v R [2018] NSWCCA 255
- R v Foster [2001] NSWCCA 215
- R v Zamagias [2002] NSWCCA 17
- Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247