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Court of Criminal Appeal 15 December 2020

Chan v R

[2020] NSWCCA 316

DrugsFirearms & weapons
CRIMINAL LAW POSSESSION OF PISTOL WITH AMMUNITION APPEAL AGAINST SENTENCE DISMISSED

Citation: Chan v R [2020] NSWCCA 316
Court: Court of Criminal Appeal, NSW
Date: 15 December 2020
Judge(s): Hoeben CJ at CL, Button J, N Adams J

Background

The applicant (referred to by the pseudonym Jenny Chan) was sentenced in the District Court at Sydney in August 2019 for two serious drug supply offences involving large commercial quantities of crystal methylamphetamine and one offence of possessing an unregistered pistol. Additional offences were taken into account on two Form 1s. The sentencing judge imposed an aggregate head sentence of seven years with a non-parole period of four years and six months, together with three indicative sentences.

The applicant sought leave to appeal against the aggregate sentence on two grounds: that the indicative sentence for the firearm offence was manifestly excessive and thereby infected the aggregate sentence with error, and that the discount allowed for her assistance to authorities was manifestly inadequate.

Before the Court of Criminal Appeal could engage with either ground, a more fundamental problem emerged: the sentencing judge had applied discounts directly to the aggregate head sentence rather than to the individual indicative sentences.

  • Whether the indicative sentence for the firearms offence was manifestly excessive, and whether that excess could infect the aggregate sentence with error
  • Whether the discount for assistance to authorities (approximately 41.67%) was manifestly inadequate, and whether the sentencing judge's departure from a figure apparently agreed during proceedings constituted a denial of procedural fairness
  • Whether, as an anterior matter not raised as a ground of appeal, the application of discounts to the aggregate sentence rather than to the indicative sentences was a legal error

Decision

Button J identified a foundational error at the outset: the sentencing judge had applied the sentencing discounts to the aggregate head sentence rather than to each indicative sentence individually. The correct approach, established in JM v R [2014] NSWCCA 297 and subsequent decisions, requires a judge to adopt starting points for each indicative sentence, apply discounts to those starting points, arrive at final indicative sentences, then set an aggregate sentence through a totality assessment without directly discounting that aggregate. This error, though not raised as a ground of appeal by the applicant, underpinned both grounds.

As a result of the anterior error, Ground 1 could not be assessed in any meaningful way. It was impossible to determine from the remarks on sentence whether the five-year indicative sentence for the firearm offence was discounted or not, and whether the true starting point for that offence was therefore five years or something approaching ten years. Without that clarity, assessing whether manifest excess in an indicative sentence had infected the aggregate sentence was, as Button J put it, "an arid" exercise.

Ground 2 was equally affected. The procedural fairness complaint rested on the premise that the discount should have been applied to the aggregate sentence. Because no discount should have been applied to the aggregate at all, the complaint had no valid foundation.

Rather than dismissing the appeal on technical grounds, Button J conducted a fresh sentencing exercise. Applying a 50% discount to starting points for each offence, his Honour arrived at an aggregate head sentence of eight years with a non-parole period of five years. Because that figure exceeded the sentence imposed at first instance in both its components, the Court was affirmatively satisfied that no lesser sentence was warranted in law, and dismissed the appeal. N Adams J conducted a separate fresh sentencing and reached a similarly higher figure, agreeing with Button J's orders.

Orders Made

  • Pseudonyms to be adopted in the judgment
  • Judgment not to be published on NSW Caselaw before 1 December 2021, and not without consultation with both parties
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the JM v R line of authority, confirmed again here, sentencing discounts must be applied to individual indicative sentences, not to the aggregate head sentence. Applying a discount directly to the aggregate is a legal error.
  • Where the sentencing methodology is fundamentally flawed, appellate courts may be unable to assess individual grounds of appeal that depend on identifying the relationship between indicative and aggregate sentences.
  • In dismissing the appeal, the Court of Criminal Appeal conducted its own fresh sentencing exercise and arrived at an aggregate sentence higher than that imposed at first instance, demonstrating that identifying error does not automatically benefit an applicant.
  • The procedural fairness ground (that the sentencing judge departed in chambers from a discount figure discussed in open court) was rendered futile because it was premised on a flawed starting point: no discount should have been applied to the aggregate sentence at all.
  • An applicant cannot directly appeal an indicative sentence, as indicative sentences are not imposed upon an offender; however, it may be arguable that a manifestly excessive indicative sentence can infect the ultimate aggregate sentence with error, though this Court did not resolve that question given the anterior procedural difficulty.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 33, 53A(2), 54B(4)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), ss 26(1), 36(1), 39(1), 65(3)

Cases
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- RO v R [2019] NSWCCA 183
- Brennan v R [2018] NSWCCA 22
- Christou v R [2020] NSWCCA 193
- Weir v R [2011] NSWCCA 123