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Court of Criminal Appeal 5 July 2021

Boikov v R

[2021] NSWCCA 147

Drugs
CRIME APPEAL AGAINST SENTENCE FAILURE TO SPECIFY NON PAROLE PERIOD APPEAL ALLOWED APPLICANT RE

Citation: Boikov v R [2021] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 5 July 2021
Judges: McCallum JA; Rothman J; Wright J

Background

The appellant was convicted of five offences of supplying prohibited drugs (methylamphetamine) under the Drug Misuse and Trafficking Act 1985 (NSW), all committed within approximately five weeks in early 2017. Four of the offences involved large commercial quantities, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The fifth involved an indictable quantity, carrying a maximum of 15 years with no standard non-parole period.

In August 2019, the sentencing judge in the District Court imposed an aggregate sentence of 9 years' imprisonment with a non-parole period of 5 years and 4 months. The appellant had pleaded guilty at the earliest opportunity.

The appellant sought leave to appeal the sentence on three grounds, each of which the Crown ultimately conceded involved error.

  • Whether the sentencing judge erred by applying a discount of approximately 18% for the early guilty plea, rather than the full 25% utilitarian discount
  • Whether the sentencing judge erred by applying the guilty plea discount to the aggregate sentence rather than to each of the indicative sentences individually
  • Whether the sentencing judge erred by failing to stipulate a non-parole period for each of the offences that carried a standard non-parole period, as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Crown conceded all three grounds of error. On the first ground, during sentencing proceedings the judge had flagged a discount of "around 20%," but ultimately applied a discount of approximately 18%. The Court accepted that the full 25% utilitarian discount for an early guilty plea was warranted and had not been correctly applied.

On the second ground, the Court confirmed that the guilty plea discount must be applied to each indicative sentence individually, not only to the aggregate sentence. Applying the discount solely at the aggregate level is a distinct error.

On the third ground, the Crown accepted that s 54B(4) of the Crimes (Sentencing Procedure) Act required the sentencing judge to specify a non-parole period for each offence carrying a standard non-parole period. The Crown nonetheless argued this error alone did not warrant intervention because it had made no practical difference to the aggregate sentence. The Court acknowledged the Crown's position on this point but proceeded to consider the matter in the context of the overall sentencing errors.

Having found error sufficient to warrant intervention, the Court conducted an independent assessment of the appropriate sentence. It characterised the offences as a single prolonged course of criminal conduct and applied significant concurrency. Taking into account all relevant factors, including the 25% guilty plea discount applied to each indicative sentence, the Court resentenced the appellant to an aggregate term of 8 years' imprisonment with a non-parole period of 4 years, 8 months and 27 days.

Orders Made

  • Extension of time granted for the filing of the application for leave to appeal and the appeal
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 9 August 2019 quashed
  • Appellant resentenced to a non-parole period of 4 years, 8 months and 27 days, commencing 28 March 2017 and concluding 24 December 2021, with a remainder of term of 3 years, 3 months and 3 days, concluding 27 March 2025; first eligible for parole on 24 December 2021

Key Takeaways

  • A guilty plea discount must be applied to each indicative sentence individually; applying it only to the aggregate sentence constitutes a distinct sentencing error.
  • Under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to specify a non-parole period for each offence that carries a standard non-parole period, even where an aggregate sentence is imposed.
  • The Court of Criminal Appeal confirmed that a failure during sentencing proceedings to disclose the precise basis on which sentence will be imposed does not, without more, amount to a denial of procedural fairness, provided each party has had a reasonable opportunity to prepare and present its case.
  • Where the Crown argues on an offender's appeal that no lesser sentence is warranted in law, the appellate court must independently satisfy itself that the sentence imposed sits at the bottom of the available range before accepting that submission.
  • Once sentencing error is established and the appellate court intervenes, it conducts an independent assessment of the appropriate sentence rather than simply adjusting the original figure.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Aboud v The Queen [2021] NSWCCA 77
- Barbaro v The Queen (2014) 253 CLR 58
- Davis v R [2015] NSWCCA 90
- GAS v The Queen (2004) 217 CLR 198
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- House v The King (1936) 55 CLR 499
- Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92
- Kentwell v The Queen (2014) 252 CLR 601
- R v Kilic (2016) 259 CLR 256
- See v R [2020] NSWCCA 272
- Thammavongsa v R (2015) 251 A Crim R 342
- Tuesley v R [2021] NSWCCA 58
- Veen (No 2) (1988) 164 CLR 465