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24
Court of Criminal Appeal 27 May 2020

McKinnon v R

[2020] NSWCCA 106

Drugs
SENTENCING AGGREGATE SENTENCE INDICTMENT CONTAINING TWO COUNTS FORM 1 OFFENCES FORM 1 ATTACHED TO ONE COUNT ONLY APPEAL AGAINST SENTENCE

Citation: McKinnon v R [2020] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2020
Judge(s): Payne JA (with Beech-Jones J and N Adams J agreeing)

Background

The applicant pleaded guilty at the earliest opportunity to two counts of supplying a large commercial quantity of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences occurred in March 2017 and involved separate transactions, each concerning approximately 2,500 grams of MDMA supplied through a network of associates using encrypted devices to negotiate with an undercover police operative.

Two Form 1 offences were annexed to the second count only: possession of a small quantity of testosterone, and dealing with property suspected of being proceeds of crime (approximately $237,000 in cash). The applicant asked the District Court to take these into account on sentence under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The District Court imposed an aggregate sentence of 11 years with a non-parole period of 7 years and 6 months, specifying identical indicative sentences of 7 years (non-parole period 4 years and 6 months) for each count. The applicant appealed on the ground that the sentencing judge had erred in the treatment of the Form 1 offences.

  • Whether the sentencing judge erred by failing to take the Form 1 offences into account in relation to a specific count as required by the Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
  • What the correct approach is for an appellate court once sentencing error is established: whether it must resentence, or only do so if satisfied the error affected the outcome
  • Whether the applicant bore an onus of demonstrating that a lesser sentence was warranted once error was conceded

Decision

The Court allowed the appeal. Both parties conceded that error had occurred, and the Court accepted that concession. The sentencing judge had not specified which count the Form 1 offences were to be taken into account on, and had addressed them only briefly after the substantive sentencing remarks as a near-administrative matter. Critically, the indicative sentences for both counts were identical despite the Form 1 being attached to the second count only, providing a sufficient basis to conclude that the judge had not complied with the statutory requirement.

Payne JA rejected the Crown's submission that the applicant bore an onus of demonstrating a lesser sentence was warranted following the concession of error. Citing Kentwell v The Queen (2014) 252 CLR 601, his Honour confirmed that once specific error is established, the appellate court's duty is to resentence unless, in a separate and independent exercise of its own discretion, it concludes no different sentence should be passed. There is no intermediate step of assessing the degree to which the error influenced the original outcome.

The Court also noted that the Crown's submissions misstated the effect of Vaughan v R [2020] NSWCCA 3 regarding notional accumulation in aggregate sentences, directing attention to the more recent and detailed analysis in Kliendienst v R [2020] NSWCCA 98.

On resentence, Payne JA accepted all findings of fact from the original sentencing and imposed a reduced aggregate sentence of 8 years. The Form 1 offences were taken into account on count 2 only, resulting in a higher indicative sentence for that count compared to count 1. The relevant personal circumstances considered included the applicant's early guilty plea, first-time custody status, underlying mental health issues, and prior cocaine addiction requiring supervision and treatment.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence imposed by Grant DCJ on 15 April 2019 quashed
  • Aggregate sentence of 8 years imposed, commencing 2 May 2018 and expiring 1 May 2026, with a non-parole period of 5 years and 6 months, commencing 2 May 2018 and expiring 1 November 2023
  • Indicative sentence for count 1: 5 years and 6 months, with a non-parole period of 3 years and 9 months
  • Indicative sentence for count 2: 6 years and 6 months, with a non-parole period of 4 years and 4 months (taking into account the Form 1 matters attached to that count)

Key Takeaways

  • Under Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must take Form 1 offences into account in relation to a specific identified count; failure to do so is a legal error.
  • Where identical indicative sentences are imposed on two counts despite a Form 1 being attached to only one of them, that identity of sentence is sufficient to establish the statutory requirement was not met.
  • Once specific sentencing error is established, the appellate court's obligation is to resentence afresh rather than to evaluate whether the error changed the result; the approach confirmed in Kentwell v The Queen (2014) 252 CLR 601 leaves no intermediate analytical step.
  • An applicant does not bear an onus of demonstrating that a lesser sentence is warranted merely because error has been conceded: the appellate court exercises its sentencing discretion independently.
  • Correct treatment of Form 1 offences in an aggregate sentence requires a higher indicative sentence on the specific count to which the Form 1 attaches, compared to other counts where no such matters apply.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3; ss 32(1), 53A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), 33(3)

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCA 518
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- R v Nykolyn [2012] NSWCCA 219
- Scott v R [2020] NSWCCA 81
- Vaughan v R [2020] NSWCCA 3