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Court of Criminal Appeal 28 August 2020

Woods v R

[2020] NSWCCA 219

Drugs
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE MULTIPLE FEDERAL AND STATE OFFENCES APPLICANT RESENTENCED

Citation: Woods v R [2020] NSWCCA 219
Court: Court of Criminal Appeal, New South Wales
Date: 28 August 2020
Judges: Bathurst CJ, Garling J, Wright J (Wright J delivering the principal judgment)

Background

The appellant pleaded guilty in the Local Court to two federal offences of importing a marketable quantity of a border controlled drug, one state offence of ongoing supply of a prohibited drug (with a second ongoing supply offence taken into account), and two state offences of supplying a prohibited drug. He was committed to the District Court for sentence. He had been in custody, bail refused, from the date of his arrest on 27 July 2017.

The offending involved importing MDMA and cocaine through the "dark net" using post office boxes leased in the appellant's name, as well as supplying MDMA to undercover officers on multiple occasions as part of a controlled operation. Cocaine and psilocin were also found in a locked safe at his home when it was searched on the day of his arrest.

In the District Court, Buscombe DCJ sentenced the appellant to a total effective term of seven years' imprisonment with a non-parole period of five years. The structure involved two individual sentences for the federal offences and an aggregate sentence for the state offences, with the sentences partially accumulated.

  • Whether the total effective sentence was manifestly excessive.
  • Whether the sentencing judge's finding of special circumstances was given practical effect in the sentence structure, particularly after the federal and state sentences were accumulated.

Decision

The Court of Criminal Appeal focused primarily on the second ground of appeal: whether the special circumstances finding had been given real, practical effect in the final sentence structure. A finding of special circumstances allows the court to depart from the standard statutory ratio between the non-parole period and the head sentence (broadly, increasing the parole period relative to the overall term). However, the Court found that, after the federal and state sentences were accumulated, the special circumstances finding that had been applied to the aggregate state sentence was effectively neutralised.

The sentencing judge had identified special circumstances and applied a reduced non-parole period to the aggregate state sentence in isolation. But when that sentence was accumulated on top of the federal sentences, the resulting overall non-parole period did not meaningfully reflect the special circumstances finding. The practical effect of the finding was lost in the overall sentence structure.

The Court allowed the appeal on this basis and did not need to resolve the manifest excess ground independently. The appellant was resentenced so that the special circumstances finding was properly reflected in the effective, overall non-parole period. The resentencing produced a slightly shorter overall non-parole period and head sentence than those imposed at first instance.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by the District Court on 17 June 2019 quashed.
  • For the two federal offences (sequences 1 and 20): aggregate sentence of 6 years' imprisonment commencing 27 July 2017 and expiring 26 July 2023, with a non-parole period of 4 years expiring 26 July 2021.
  • For the state offences (sequences 12, 22 and 26, with sequence 11 taken into account on a Form 1): aggregate sentence of 4 years 6 months commencing 27 April 2019 and expiring 26 October 2023, with a non-parole period of 2 years 6 months expiring 26 October 2021.
  • Overall effective sentence: non-parole period of 4 years 3 months commencing 27 July 2017 and expiring 26 October 2021; head sentence of 6 years 3 months expiring 26 October 2023.

Key Takeaways

  • A finding of special circumstances must be given practical effect not merely within an individual or aggregate sentence considered in isolation, but in the overall sentence structure after accumulation of federal and state sentences.
  • Where a sentencing court accumulates federal and state sentences, the structural interaction between those sentences can undermine a special circumstances finding that was applied at the level of the individual or aggregate sentence alone.
  • Under the relevant NSW and Commonwealth sentencing frameworks, the non-parole period fixed for federal offences under s 19AB(1) of the Crimes Act 1914 (Cth) operates separately from the non-parole period for state offences, creating complexity when sentences are accumulated.
  • The Court of Criminal Appeal confirmed that the sentencing judge's error lay not in identifying special circumstances but in failing to carry that finding through to the effective, overall sentence after accumulation.
  • In cases involving both federal and state offences, the practical effect of any special circumstances finding must be assessed by reference to the composite, overall non-parole period and head sentence, not only the component parts in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), particularly s 16(1) and s 19AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25A
- Judiciary Act 1903 (Cth)

Cases:
- Bugmy v The Queen (1990) 169 CLR 525
- Caristo v R [2011] NSWCCA 7
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- DL v The Queen (2018) 265 CLR 215
- Fina'i v R [2006] NSWCCA 134
- Hili v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Maglis v R [2010] NSWCCA 247
- MD v R [2015] NSWCCA 37
- Putland v The Queen (2004) 218 CLR 174
- R v LWP [2003] NSWCCA 215
- R v Sutton [2004] NSWCCA 225