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Court of Criminal Appeal 12 February 2020

Noufl v R

[2020] NSWCCA 10

Drugs
CRIME APPEALS TIME CUSTODY WHETHER SENTENCES MANIFESTLY EXCESSIVE PARITY GROUND UPHELD APPLICANT RESENTENCED

Citation: Noufl v R [2020] NSWCCA 10
Court: Court of Criminal Appeal, NSW
Date: 12 February 2020
Judges: Hoeben CJ at CL, R A Hulme J, Button J

Background

The applicant was sentenced in the District Court in July 2018 for two counts of supplying a prohibited drug. The first count related to 27.8 g of crystal methylamphetamine (ice) at 55.5% purity, with an additional supply offence attached via a Form 1. The second count related to 27.5 g of MDMA (ecstasy) at 16.5% purity. Each principal offence carried a maximum penalty of 15 years' imprisonment.

The applicant had acted as an assistant to a co-offender with whom he shared accommodation. On a single occasion, an undercover police operative attended the premises and the applicant handed over the drugs and received $6,200 in cash. The sentencing judge assessed the applicant's offending as low in objective seriousness, noted a clean criminal record, and applied a 25% discount for early guilty pleas.

The original sentences produced a total head sentence of just over two years and one month, with a non-parole period of just over one year and two months. The structure of those sentences, as the legislation then stood, placed the applicant outside eligibility for an intensive correction order (ICO). The applicant sought leave to appeal, contending that the sentences were infected by several errors, including a disparity with the sentences imposed on the co-offender.

  • Whether the sentencing judge made an unsupported factual finding that the applicant personally benefited financially from the drug supply
  • Whether the cumulation of the two sentences was available in the circumstances
  • Whether the applicant's subjective circumstances were adequately reflected in the sentences
  • Whether the sentences were manifestly excessive
  • Whether an unjustified sentencing disparity existed between the applicant and the co-offender (the parity ground)
  • What, if any, effect an erroneously generous backdate (of approximately four months) should have on the resolution of the appeal

Decision

The Court found that the parity ground was made out. Although the co-offender's criminality was clearly more extensive, involving significantly greater drug quantities, a commercial quantity charge carrying a higher maximum, and a proceeds-of-crime count, the gap between the two non-parole periods was strikingly narrow. The co-offender's total non-parole period was less than ten months longer than the applicant's, a difference the Court considered insufficient given the disparity in culpability.

The Court noted a further complication: the sentencing judge had backdated the applicant's sentences to a date approximately four months earlier than his actual period in custody warranted. This error, arising from an incorrect Crown sentence summary, meant the applicant received an unearned reduction of nearly four months. The Court factored this benefit into its resentencing exercise rather than simply ignoring it.

On resentencing, the Court reduced the individual head sentences so that the total term brought the applicant within eligibility for an ICO. The Court was satisfied, on the basis of all tendered material and the applicant's uncontradicted sworn evidence on appeal, that an assessment report before making the ICOs was not required. The Court expressly noted that community safety was paramount and that declining to return the applicant to full-time custody was more likely to reduce his risk of reoffending.

The Court did not find it necessary to separately determine all of the other grounds of appeal (including manifest excess, improper cumulation, and the aggravating factor complaint), given that the parity ground alone was sufficient to warrant resentencing.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentences imposed by Judge Maiden SC on 12 July 2018 quashed
  • On count two: imprisonment for one year six months, commencing 12 February 2020, to be served by way of ICO
  • On count one: imprisonment for one year nine months, commencing 12 May 2020, to be served by way of ICO
  • Conditions of each ICO:
  • The applicant must not commit any offence
  • The applicant must submit to supervision by a community corrections officer
  • The applicant must receive treatment for any drug-related issues at the reasonable discretion of his community corrections officer

Key Takeaways

  • The parity principle requires that co-offenders not receive sentences that are unjustifiably disparate; even where one offender's criminality is clearly greater, the relative difference in sentences must reflect the actual difference in culpability.
  • An erroneously generous backdate, caused by an inaccurate Crown sentence summary, does not simply disappear on appeal. The Court of Criminal Appeal incorporated that unearned benefit into its resentencing calculation rather than treating it as irrelevant.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW) as it stood at the relevant time, a total head sentence exceeding two years rendered an ICO unavailable, meaning the internal structure of cumulated sentences could directly affect what non-custodial options a court could consider.
  • Where the parity ground is sufficient to require resentencing, an appellate court may decline to separately resolve other contested grounds, such as manifest excess or improper cumulation, if doing so is unnecessary to the outcome.
  • Uncontradicted sworn evidence given by an applicant on appeal, combined with material tendered at the original proceedings, can satisfy a court that a statutory assessment report is not required before the making of an ICO.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 10A, 17D, 66, 69, 71, 73, 73A
- Drug Misuse and Trafficking Act 1986 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Haydon v R [2012] NSWCCA 151
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Parente [2017] NSWCCA 284; (2017) 96 NSWLR 633
- R v Zamagias [2002] NSWCCA 17