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Court of Criminal Appeal 9 September 2020

Nweke v R (No 2)

[2020] NSWCCA 227

Drugs
CRIME SENTENCING AUTOMATIC REVOCATION OF PAROLE ORDER

Citation: Nweke v R (No 2) [2020] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 9 September 2020
Judge(s): McCallum JA; Davies J; Button J

Background

This decision was the second judgment in a sentence appeal arising from the resentencing of an offender convicted of conspiring to import a commercial quantity of cocaine between March and April 2014. The appeal against conviction had been dismissed in the primary judgment (Nweke v R [2020] NSWCCA 153), but the sentence appeal was allowed. Before proceeding to resentence, the Court invited further submissions on the appropriate structure of the new sentence.

The central complication was that the offender had been on parole for an earlier federal offence at the time the new offence was committed. This triggered the automatic parole revocation provisions in Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth). The offender was not sentenced for the new offence until years after his arrest, creating significant tension between those Commonwealth provisions and orthodox New South Wales sentencing principles.

The primary judgment had already identified an error in how credit was calculated for "clean street time" (time spent on parole before the new offence, which reduces the unserved balance of the earlier sentence). This second judgment resolved the remaining structural questions about how the new sentence should be constructed.

  • Whether the automatic federal parole revocation provisions in s 19AQ of the Crimes Act 1914 (Cth) applied where the parole period had expired by the time the new sentence was imposed
  • How "clean street time" on the revoked federal parole should be credited when calculating the unserved balance of the earlier sentence
  • How credit for pre-sentence custody (remand time) should be applied where the offender was simultaneously liable to serve the unserved balance of the revoked federal parole
  • Whether any sentencing structure could avoid distorting common law and statutory sentencing principles given the constraints imposed by the federal regime

Decision

The Court confirmed, consistent with the primary judgment, that s 19AQ applied even where the parole period had already expired by the date the new sentence was imposed. The automatic revocation mechanism was triggered by the commission of the offence during the parole period and the subsequent imposition of a sentence exceeding three months, not by whether the parole period remained current at sentencing.

The Court identified a fundamental structural problem with the federal parole revocation regime. Under s 19AS(1)(d), the offender was required to begin serving the unserved balance of the outstanding federal sentence on the day the new sentence was imposed. This provision gave the sentencing court no discretion to backdate that recommencement, making it impossible for any remand time to be credited against the outstanding balance. That outcome sits in direct tension with ordinary New South Wales sentencing practice, under which the balance of parole would typically be served first and often during the remand period.

The Court examined two competing approaches to resolving the tension between crediting pre-sentence custody and maintaining a proportionate sentence for the new offence. One approach (adopted in R v Hughes [2020] NSWDC 98) preserves distinct recognition of the outstanding sentence at the cost of imposing a less-than-proportionate sentence for the new offence. The alternative is to backdate the new sentence only partially, reflecting pre-sentence custody minus any period of notional accumulation on the outstanding sentence. The Court found that neither approach was wholly satisfactory, and neither was wrong, provided the reasoning was transparent and the sentence was not distorted beyond what would otherwise have been appropriate.

The Court stated plainly that, where federal parole is automatically revoked under the provisions of Subdivision B of Division 5, it is not possible to impose a sentence that does not involve some distortion of the common law and statutory principles governing sentencing. The complexity of the regime, particularly the absence of a federal parole authority, forces sentencing courts to perform tasks ordinarily reserved for a parole authority, without the tools or discretions needed to do so consistently with orthodox principle.

Orders Made

  • The sentences imposed on 22 March 2019 were quashed.
  • For the offence of conspiring to import a commercial quantity of cocaine between 27 March 2014 and 30 April 2014, the offender was sentenced to 13 years and 3 months imprisonment commencing 30 October 2014 and expiring 29 January 2028.
  • A non-parole period of 8 years was fixed, commencing 30 October 2014 and expiring 29 October 2022, on which date the offender became eligible for release to parole.

Key Takeaways

  • The automatic federal parole revocation mechanism in s 19AQ of the Crimes Act 1914 (Cth) operates even where the parole period has expired by the time the new sentence is imposed, provided the new offence was committed during the parole period and the new sentence exceeds three months.
  • Under s 19AS(1)(d) (now s 19AS(1)(e)), the offender must begin serving the unserved balance of the outstanding federal sentence on the day the new sentence is imposed. The sentencing court has no power to backdate this recommencement, which means remand time cannot be credited against the outstanding balance in the ordinary way.
  • The Court of Criminal Appeal found that no sentencing structure can fully avoid some distortion of common law and statutory sentencing principles where an order for federal parole is automatically revoked under Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth).
  • Two competing structural approaches to crediting pre-sentence custody in this context were identified. Both are permissible, provided the sentencing court's reasoning is transparent and the resulting sentence is not disproportionate.
  • The complexity and opacity of the federal parole revocation regime, including the absence of a federal parole authority, places sentencing courts in the position of performing administrative functions without the discretions needed to achieve consistent outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16E, 19AA, 19AQ, 19AR, 19AS
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 2(1), Sch 13
- Crimes Regulations 2019 (Cth), Sch 1

Cases:
- Nweke v R [2020] NSWCCA 153 (primary judgment in this appeal)
- R v Hughes [2020] NSWDC 98
- Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 213 A Crim R 420

Other material referenced:
- Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (April 2006), Recommendation 23.1
- Weinberg JA, "The Labyrinthine Nature of Federal Sentencing" (speech, National Judicial College of Australia and ANU College of Law, February 2012)