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Court of Criminal Appeal 19 December 2019

Blanch v R

[2019] NSWCCA 304

Drugs
CRIMINAL APPEAL SENTENCE APPEAL THREE GROUNDS OF APPEAL

Citation: Blanch v R [2019] NSWCCA 304
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2019
Judges: Hoeben CJ at CL; Price J; Campbell J

Background

The appellant was sentenced in the District Court at Newcastle on 3 April 2019 to an aggregate term of 2 years and 9 months imprisonment, with a non-parole period of 18 months, for three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved the supply of methylamphetamine (ice) and cannabis in the Muswellbrook area between May and October 2015, with the methylamphetamine supply exceeding 140 grams across 35 customers.

At the sentencing hearing, the appellant's primary submission was that the sentence, while necessarily one of imprisonment, should be served in the community as an Intensive Correction Order (ICO). The sentencing judge refused to make an ICO, but the appellant contended he did so without adequately addressing the statutory framework governing that decision.

The appellant sought leave to appeal on three grounds: that the sentencing judge failed to give paramount consideration to community safety as required by s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW); that he failed to provide reasons for refusing the ICO; and that he mistook a factual matter by finding that the offences had been committed in breach of conditional liberty.

  • Whether the sentencing judge erred by failing to give paramount consideration to community safety under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when declining to impose an ICO.
  • Whether the sentencing judge was required to give reasons for refusing to impose an ICO, and whether the failure to do so constituted an error.
  • Whether the sentencing judge made a factual error in finding that the offences were committed while the appellant was on conditional liberty.

Decision

All three grounds of appeal were established. On Ground 1, the Court found the sentencing judge failed to direct himself to the paramount consideration in s 66, namely whether an ICO or full-time detention was more likely to address the appellant's risk of reoffending. The Court noted, however, that the existing authorities on the precise construction of s 66 contain unresolved tensions, and it was unnecessary to settle those controversies to resolve this appeal.

On Ground 2, Campbell J concluded that, in circumstances where the entire focus of sentencing submissions was on the ICO question, the sentencing judge was required to expressly address s 66 in his reasons. The Court was careful to note that this obligation does not arise in every sentencing matter, only where the ICO is the central issue in dispute.

On Ground 3, the Crown itself identified the factual error in written submissions. The sentencing judge's finding that the offences were committed in breach of conditional liberty was not supported by the evidence before him.

The Court proceeded to re-sentence. It received additional evidence not available to the sentencing judge, including that the appellant had spent approximately nine months in full-time custody, had engaged with the IDAPT drug rehabilitation program, had gained insight into her offending and its effects, and was assessed as genuinely remorseful. Price J noted that, absent this additional material, no different sentence from the original aggregate term would have been warranted. Taking into account the additional rehabilitation evidence, the aggregate term of imprisonment was maintained but ordered to be served by way of an ICO with stringent conditions.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Gartelmann SC on 3 April 2019 quashed.
  • Appellant re-sentenced to an aggregate period of imprisonment of 2 years and 9 months, to be served by way of an Intensive Correction Order commencing 13 March 2019 and expiring 12 December 2021.
  • ICO subject to the following conditions:
  • No further offences to be committed.
  • Submission to supervision by a Community Corrections Officer.
  • Participation in a rehabilitation program on referral by a Community Corrections Officer.
  • Seeking and receiving treatment in consultation with her general practitioner or other professional to maintain or review her current medication regime.
  • Abstention from alcohol and drugs.
  • Monitoring by Community Corrections of the appellant's relationship with her partner.

Key Takeaways

  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), where an ICO is the central issue in sentencing submissions, the sentencing court must expressly direct itself to the paramount consideration in that provision: whether an ICO or full-time detention is more likely to address the offender's risk of reoffending. No such obligation arises automatically in every case.

  • A failure to engage with s 66 at all, in circumstances where the ICO question was squarely in dispute, constitutes a sentencing error sufficient to ground a successful appeal.

  • The Court of Criminal Appeal declined to resolve existing divergences in its own decisions about the precise construction of s 66, finding it unnecessary to do so on the facts of this case.

  • Where additional sentencing material is placed before the Court of Criminal Appeal on re-sentence, it may result in a different outcome than would otherwise have been available. Price J expressly stated that the original aggregate sentence would have stood but for the new rehabilitation evidence.

  • A factual error at sentencing, even one that the Crown concedes in its submissions, constitutes a discrete ground of appeal under s 6 of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 17C, 17D, 21A, 47, 66, 67, 68, 69, 71, 73, 73A, 73B
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (High Risk Offenders) Act 2007 (NSW), s 9

Cases:
- Casella v R [2019] NSWCCA 201
- Douar v R [2005] NSWCCA 455
- House v The King (1936) 55 CLR 499
- Karout v R [2019] NSWCCA 253
- Kentwell v The Queen (2014) 252 CLR 601
- Paul Campbell v R [2018] NSWCCA 87
- R v Fangaloka [2019] NSWCCA 173
- R v Kennedy [2019] NSWCCA 242
- R v Pullen [2018] NSWCCA 264
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Taylor v R [2018] NSWCCA 255
- Wan v R; R v Wan [2019] NSWCCA 86
- Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816