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Court of Criminal Appeal 1 May 2020

Abel v R

[2020] NSWCCA 82

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE UNORTHODOX PROCEDURAL HISTORY FORM 1 “WITHDRAWN” ICO ULTIMATELY IMPOSED

Citation: Abel v R [2020] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 1 May 2020
Judge(s): Macfarlan JA, R A Hulme J, Button J

Background

The applicant pleaded guilty in the District Court at Parramatta to supplying cocaine and dealing with the proceeds of crime. The sentencing judge initially proposed a head sentence of 2 years and 5 months, but at that stage the proceeds offence was to be taken into account on a Form 1 rather than sentenced separately. That procedural choice created a problem: a single-offence sentence of that length exceeded the 2-year threshold for an intensive correction order (ICO) under s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Near the conclusion of the original remarks on sentence, defence counsel applied to withdraw the Form 1 so that both offences could be dealt with separately on a fresh indictment. This would allow an aggregate sentence to be imposed, potentially making an ICO available. The application was granted with the Crown's consent and the matter was adjourned for approximately three months. The applicant was ultimately rearraigned, a sentencing assessment report was obtained, and an aggregate sentence of 29 months served by way of an ICO with a home detention condition was imposed.

The applicant sought leave to appeal against that aggregate sentence on the grounds that the sentencing judge erred in assessing rehabilitation prospects and likelihood of reoffending, misdirected himself on the objective gravity of the offences, and imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge erred in failing to find good prospects of rehabilitation and a low likelihood of reoffending
  • Whether the sentencing judge made an error in assessing the objective gravity of the drug and proceeds offences
  • Whether the final sentence, featuring an ICO, was manifestly excessive
  • Whether the procedural course adopted (including "withdrawal" of the Form 1 and recommencement of proceedings) was regular or appropriate
  • Whether the structure of s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) produces anomalous outcomes in relation to ICO eligibility

Decision

Button J (with whom Macfarlan JA and R A Hulme J agreed) dismissed all grounds of appeal, finding that none had merit. Leave to appeal against sentence was refused.

On the substantive grounds, the court found no error in the sentencing judge's assessment of rehabilitation prospects, likelihood of reoffending, or the objective gravity of the offences. The final aggregate sentence of 29 months served by way of an ICO was not manifestly excessive.

Button J used the opportunity to comment on the procedural irregularities that arose. His Honour expressed serious doubt that a Form 1 can simply be "withdrawn" once evidence in sentencing proceedings has closed, and expressed even greater doubt that it can be withdrawn at the very conclusion of the remarks on sentence. His Honour also noted that the original misunderstanding by defence counsel about whether a sentence is actually imposed for a Form 1 offence was a basic one, settled at the latest since the Attorney General's guideline judgment of 2002.

R A Hulme J added separate observations about a further anomaly in s 68: even where a total effective sentence falls between 2 and 3 years, an ICO is unavailable if any single individual sentence within that range exceeds 2 years. His Honour noted that this anomaly had already caused difficulties in other recent decisions of the Court of Criminal Appeal.

Orders Made

  • Leave to appeal against sentence refused

Key Takeaways

  • No error was established in the sentencing judge's findings on rehabilitation, reoffending prospects, or objective gravity of the offences, and the appeal was dismissed on all grounds.

  • Under s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence of between 2 and 3 years is eligible for an ICO if it is an aggregate sentence, but not if it is a single-offence sentence exceeding 2 years, even where a Form 1 offence is attached.

  • A further anomaly exists where concurrent sentences each individually exceed 2 years: the Court of Criminal Appeal confirmed (citing Cross v R and R v Pullen) that such sentences are ineligible for an ICO even if an aggregate sentence of the same length would have been eligible.

  • Button J expressed serious doubt about the regularity of withdrawing a Form 1 application at the very conclusion of remarks on sentence, and described the procedural restart as wasteful and unseemly, though no formal invalidity was declared.

  • The Court of Criminal Appeal observed that the current mechanics of s 68 are producing counter-intuitive and anomalous results, creating incentives for offenders to avoid the Form 1 procedure, which is contrary to the consensual and administratively efficient purpose underlying that procedure. Button J suggested Parliament reconsider the provision.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 68
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193C(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cross v R [2019] NSWCCA 280
- R v Pullen [2018] NSWCCA 264
- R v Qi [2019] NSWCCA 73
- R v Zamagias [2002] NSWCCA 17