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Court of Criminal Appeal 7 October 2020

Oncu v R

[2020] NSWCCA 260

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE INCORRECT STANDARD NON PAROLE PERIOD REFERRED TO IN SENTENCING ERROR ESTABLISHED

Citation: Oncu v R [2020] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 7 October 2020
Judges: Price J, Garling J, Wright J (Wright J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to two offences: manufacturing not less than the large commercial quantity of methylamphetamine, and possessing an unauthorised firearm (a .357 Magnum revolver). A further offence of possessing ammunition without authorisation was taken into account on a Form 1. The sentencing judge imposed an aggregate sentence of 9 years and 6 months, with a non-parole period of 6 years and 6 months.

The applicant filed his notice of intention to appeal out of time, and required an extension of time to bring the application. Two grounds of appeal were ultimately pursued. After the hearing, the Court itself identified that the sentencing judge may have applied an incorrect standard non-parole period for the firearms offence, and raised this issue with the parties through the Registrar.

The applicant was granted leave to add a supplementary ground directed at that error. Neither party sought a further oral hearing on the additional ground.

  • Whether the sentencing judge applied the wrong standard non-parole period for the firearms offence contrary to s 7(1) of the Firearms Act 1996 (NSW)
  • Whether any such error materially affected the aggregate non-parole period imposed
  • Whether the original ground of appeal, challenging the notional accumulation of indicative sentences, required consideration
  • Whether a lesser sentence was warranted in law following identification of error

Decision

The Court found that the firearm offence was committed on 3 December 2014. At that date, the standard non-parole period for offences under s 7 of the Firearms Act 1996 was three years. By the time of sentencing in April 2018, that period had been increased to four years. Both parties' submissions to the sentencing judge had incorrectly stated the standard non-parole period as four years, and his Honour adopted that figure in his remarks on sentence.

Wright J accepted that the sentencing judge had sentenced the applicant on the erroneous basis that the standard non-parole period was four years rather than three. Because a standard non-parole period is a legislative guidepost that a sentencing court is required to take into account, applying the wrong figure constituted an extraneous or irrelevant consideration within the principles in House v The King (1936) 55 CLR 499. The Court was satisfied this error materially affected the non-parole period for the aggregate sentence.

Having established error on the supplementary ground, the Court did not need to resolve the original ground concerning notional accumulation of indicative sentences. Wright J noted, however, that nothing in the submissions on that ground caused him to doubt the correctness of the earlier CCA decisions in Vaughan v R and Kliendienst v R.

The Court then exercised its sentencing discretion afresh. Applying the correct standard non-parole period of three years for the firearms offence, and having regard to the unchallenged factual findings of the sentencing judge, the Court imposed sentences yielding an effective overall term of 9 years, with first eligibility for parole on 29 January 2023.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 10 February 2020
  • Leave granted to rely on the supplementary ground of appeal identified in submissions dated 17 August 2020
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Aggregate sentence imposed by the District Court on 27 April 2018 quashed
  • Count 1 (manufacture of large commercial quantity of methylamphetamine): non-parole period of 5 years commencing 30 January 2018, expiring 29 January 2023, with balance of term of 3 years expiring 29 January 2026
  • Count 2 (unauthorised possession of firearm, taking into account Form 1 offence): non-parole period of 1 year and 6 months commencing 30 January 2017, expiring 29 July 2018, with balance of term of 1 year and 6 months expiring 29 January 2020

Key Takeaways

  • The standard non-parole period applicable to an offence is determined by the law in force at the time the offence was committed, not the law in force at the time of sentencing.
  • Under the principles in House v The King, applying an incorrect standard non-parole period constitutes an error of law because the sentencing court takes into account an extraneous or irrelevant consideration in fixing the non-parole period.
  • Where an aggregate sentence has been imposed, an appeal relates to that aggregate sentence rather than to the indicative individual sentences. Nonetheless, error in an indicative sentence can constitute appealable error if it materially affected the aggregate sentence.
  • A standard non-parole period functions as a legislative guidepost that sentencing courts are required to take into account, meaning the use of a wrong figure is not merely a technical slip but a substantive sentencing error.
  • In resentencing after identified error, the Court of Criminal Appeal exercises its sentencing discretion afresh, having regard to the original sentencing judge's unchallenged factual findings and any relevant post-sentence material.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33(2), 53A(2)(b), 54D
- Criminal Appeal Act 1912 (NSW), ss 6(3), 10(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)

Cases:
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Greentree v R [2018] NSWCCA 22
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- Maxwell v R [2020] NSWCCA 94
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
- R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee [2018] NSWDC 106
- Vaughan v R [2020] NSWCCA 3