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18
Court of Criminal Appeal 5 April 2019

R v Qi

[2019] NSWCCA 73

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE LIMITED ROLE OF DELIVERY MAN PLEA OF GUILTY IN LOCAL COURT POWERFUL SUBJECTIVE FEATURES WHETHER ICO MANIFESTLY INADEQUATE

Citation: R v Qi [2019] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 5 April 2019
Judges: Payne JA, Button J, Lonergan J

Background

The respondent pleaded guilty in the Local Court to one count of supplying a large commercial quantity of methylamphetamine (1,983.1 grams at approximately 57.5% purity) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The respondent was intercepted by police while driving in Sydney, threw a garbage bag containing the drug from his car window, and then resisted arrest.

In the District Court, Judge Wass SC sentenced the respondent to 2 years and 6 months imprisonment, to be served by way of an Intensive Correction Order (ICO). Her Honour applied a 25% utilitarian discount for the early guilty plea and found the respondent's role was limited to a single delivery task, placing the offending towards the lower end of seriousness for offences of this type. The respondent had powerful subjective features, including youth, strong community ties, employment history, and his own drug and gambling problems.

The Crown appealed, arguing on two grounds: first, that the ICO was manifestly inadequate given the objective and subjective circumstances; and second, that the ICO of 30 months exceeded the court's statutory jurisdiction, since only one offence was before the sentencing judge and the maximum ICO duration for a single offence was two years.

  • Whether the ICO of 2 years 6 months was manifestly inadequate for an offence of supplying a large commercial quantity of methylamphetamine, having regard to the maximum penalty, the standard non-parole period, and the objective and subjective features.
  • Whether the sentencing judge exceeded statutory jurisdiction by imposing an ICO of more than two years when sentencing for only one offence, in circumstances where a related certificate offence (resisting arrest) had mistakenly been dismissed rather than sentenced.
  • Whether, if the jurisdictional error alone was established, that would be a sufficient basis to uphold the Crown appeal and impose a heavier sentence.

Decision

Button J (with Payne JA and Lonergan J agreeing) upheld the Crown appeal on Ground 1, finding the ICO was manifestly inadequate. Notwithstanding the respondent's limited role as a one-off delivery person, the quantity and value of the drug, the applicable maximum penalty, and the 15-year standard non-parole period collectively meant that the sentence was not within the proper exercise of the sentencing discretion. The Court was not satisfied that the residual discretion to decline intervention should be exercised.

On Ground 2, a jurisdictional error was identified. Because the certificate offence of resisting arrest had been mistakenly dismissed rather than sentenced, only one offence was before the sentencing judge. Under s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as it then stood, the maximum ICO term for a single offence was two years; the 30-month ICO therefore exceeded jurisdiction. Neither the prosecutor nor senior counsel for the respondent had brought this to the sentencing judge's attention.

Button J expressed the view that the jurisdictional error alone would not, in the interests of justice, have been sufficient to warrant imposing a heavier sentence. The error had in one sense been advantageous to the respondent (an unmeritorious dismissal of the resist arrest charge) and had not been identified by any party at first instance. Payne JA and Lonergan J agreed it was unnecessary to resolve the contingent questions arising under Ground 2, given the success of Ground 1.

On resentencing, the Court imposed a head sentence of three years' imprisonment with a non-parole period of 18 months, backdated to reflect the period already served in custody.

Orders Made

  • Crown appeal against sentence allowed.
  • The sentence imposed on the respondent on 12 October 2018 is quashed.
  • In substitution, the respondent is sentenced to a non-parole period of 18 months commencing 3 February 2019, followed by a parole period of 18 months, expiring 2 February 2022 (head sentence of 3 years' imprisonment).
  • The respondent's expected release to parole is 2 August 2020.

Key Takeaways

  • An ICO is not an appropriate sentencing disposition for an offence of supplying a large commercial quantity of methylamphetamine, even where the offender's role was limited and powerful subjective features were present.
  • Under s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as it stood at the relevant date, the maximum duration of an ICO was two years where only one offence was being sentenced; that limit rose to three years only where sentences were being imposed for two or more offences.
  • A procedural slip resulting in the failure to sentence an offender on a related certificate offence created a jurisdictional error, but Button J considered that error alone would not, in the interests of justice, have justified upholding a Crown appeal and imposing a greater sentence where no party had drawn the error to the sentencing judge's attention and the error had not disadvantaged the respondent.
  • The Court of Criminal Appeal confirmed that the residual discretion to decline intervention on a Crown appeal should not be exercised where the sentence lies outside the proper range, regardless of sympathetic subjective features.
  • Counsel appearing at sentencing bear a responsibility to ensure the court operates within its statutory jurisdiction, particularly when urging the imposition of a specific sentencing option such as an ICO.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 68
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Parente [2017] NSWCCA 284