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Court of Criminal Appeal 13 September 2019

Kha v R

[2019] NSWCCA 215

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS SENTENCE CRIME APPEALS

Citation: Kha v R [2019] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 13 September 2019
Judges: Bathurst CJ; Ierace J; Hidden AJ

Background

The appellant pleaded guilty in the District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW): two counts of supplying an indictable quantity of methamphetamine and one count of supplying a large commercial quantity of heroin (1.038kg, valued at $250,000). The sentencing judge also took into account three additional supply offences under a Form 1. An aggregate sentence of 11 years with a non-parole period (NPP) of 8 years and 3 months was imposed on 7 August 2017.

The appellant, a Vietnamese-born man with permanent residency, was aged 41 at arrest. He had minimal prior offending, was the primary carer and provider for an extended family including four children and two elderly relatives, and was found to have a low-to-medium risk of reoffending. His involvement was described as motivated by financial pressure, and he said he acted as a driver and storage assistant for a co-offender.

The appellant sought leave to appeal on the basis that the sentencing judge made several errors, including failing to adjust the NPP after finding special circumstances, failing to make a finding about the objective seriousness of the offence, and failing to indicate an NPP for count 3 in the indicative sentence.

  • Whether the sentencing judge erred in finding special circumstances but failing to adjust the NPP to reflect that finding (denial of procedural fairness).
  • Whether the sentencing judge erred in not making a finding about the objective seriousness of the drug supply offences.
  • Whether the sentencing judge erred in failing to indicate a NPP for the large commercial quantity heroin offence (count 3) when recording indicative sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the first ground: the sentencing judge had expressly found special circumstances but then failed to reflect that finding in the NPP. Under s 44 of the Crimes (Sentencing Procedure) Act, the default ratio of NPP to head sentence is three-quarters. A finding of special circumstances permits departure from that ratio, and once the finding is made, the NPP must be adjusted accordingly. The failure to do so was a material error that justified resentencing.

On the second ground, the Court acknowledged that a sentencing judge is generally required to assess objective seriousness, and the absence of any express finding was problematic. However, this ground was not the primary basis for allowing the appeal, given that the resentencing itself addressed the overall sentencing exercise afresh.

On the third ground, the Court found that the failure to record an indicative NPP for count 3 alongside the indicative sentence was an error under s 53A(2)(b) of the Act. Where a standard NPP applies (as it does for a large commercial quantity offence, where the standard NPP is 15 years), the sentencing judge is obliged to record an indicative NPP as part of the indicative sentencing exercise.

On resentencing, the Court identified special circumstances arising from a combination of factors: the appellant's vulnerability to financially motivated offending upon release, the pressure of supporting a socially isolated extended family, and the fact that this was his first custodial sentence. These circumstances warranted a modest extension of the parole period, though not a dramatic departure from the standard ratio. The appellant also received a 25% discount for his early guilty plea. The resulting aggregate sentence was 9 years, with an NPP of 6 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 7 August 2017 quashed.
  • Appellant resentenced to an aggregate NPP of 6 years commencing 25 June 2015 and expiring 24 June 2021, with a balance of term of 3 years expiring 24 June 2024.
  • Earliest eligible release date: 24 June 2021.

Key Takeaways

  • A sentencing judge who makes a finding of special circumstances must give effect to that finding by actually adjusting the non-parole period. A finding without a corresponding adjustment is a material error that can found a successful appeal.
  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), where a standard non-parole period applies to an offence, the sentencing judge must record an indicative NPP as part of the indicative sentencing exercise for an aggregate sentence, not merely an indicative head sentence.
  • Special circumstances may be established by a combination of factors, including vulnerability to financially motivated reoffending on release and the fact that the sentence represents a first term of imprisonment, even where neither factor alone would suffice.
  • In resentencing, the Court applied a 25% discount for early guilty plea and a degree of accumulation across the aggregate sentence to reflect discrete acts of supply.
  • The Court of Criminal Appeal confirmed the principle from R v Dashti [2016] NSWCCA 251 that a first prison sentence is unlikely to constitute special circumstances on its own, but may do so in combination with another more significant basis.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 53A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 32, 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Brennan v R [2018] NSWCCA 22
- Button v R [2010] NSWCCA 264
- Dang v R [2014] NSWCCA 47
- House v The King (1936) 55 CLR 499
- Obeid v R [2017] NSWCCA 221
- R v Dashti [2016] NSWCCA 251
- R v Fidow [2004] NSWCCA 172
- R v Olbrich (1999) 199 CLR 270
- R v Van Ryn [2016] NSWCCA 1
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
- Weir v R [2011] NSWCCA 123