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Court of Criminal Appeal 3 September 2021

Salim v R

[2021] NSWCCA 216

DrugsFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE SPECIAL CIRCUMSTANCES FINDINGS OF THE SENTENCING JUDGE WHETHER ADJUSTMENT OF NON

Citation: Salim v R [2021] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 3 September 2021
Judge(s): Bell P, Johnson J, Cavanagh J

Background

The appellant was sentenced in the District Court at Parramatta following his involvement in an organised crime syndicate operating from commercial premises in Seven Hills. Police covert surveillance captured him participating in the storage and supply of 10.03 kilograms of ephedrine (more than twice the large commercial quantity threshold), possessing an airsoft pistol in the context of a drug and firearms syndicate, and knowingly participating in a criminal group. The sentencing judge imposed an aggregate sentence of 6 years and 9 months with a non-parole period of 4 years and 6 months, commencing 28 June 2018.

At the time of offending, the appellant was subject to an intensive corrections order (ICO) for assault offences. That ICO was revoked upon his arrest. The aggregate sentence was accumulated partly upon the time already served in custody in relation to the earlier offending.

The appellant sought leave to appeal on the ground that the sentencing judge failed to properly apply, and then give adequate effect to, a finding of special circumstances when fixing the non-parole period.

  • Whether the sentencing judge failed to consider three specific factors when finding special circumstances: that it was the appellant's first time in custody; that he had only one prior set of convictions from a single incident; and that he would suffer greater hardship in custody due to his mental health condition.
  • Whether the sentencing judge erred by failing to adequately reduce the non-parole period of the aggregate sentence to give effect to the special circumstances finding, once that sentence was accumulated upon the pre-existing sentence.

Decision

On Ground 1, the Court of Criminal Appeal found no demonstrated error. The sentencing judge had explicitly found special circumstances and acknowledged that the finding was required because of the accumulation of sentences. The Court noted that a sentencing judge is not required to enumerate every consideration underlying a special circumstances finding, and that an appellate court should not infer error merely from silence on individual factors. The sentence proceedings included the respondent's concession that special circumstances were open, and the judge's remarks were consistent with having taken the relevant factors into account.

On Ground 2, the Court rejected the argument that the non-parole period was insufficiently reduced to give effect to the special circumstances finding. The Court confirmed the well-established principle that, while a finding of special circumstances requires some adjustment to the statutory ratio between the non-parole period and the balance of the sentence, there is no obligation to depart dramatically from that ratio. The adjustment required depends on the particular circumstances, and the extent of any departure is a matter for the sentencing judge's discretion.

The Court further observed that the accumulation of the new sentence upon the earlier sentence had a mechanical effect: because accumulation extended the overall sentence, it naturally reduced the proportion of the non-parole period relative to the head sentence, even without an express further reduction. The Court was satisfied that the sentencing judge intended the outcome reflected in the aggregate sentence, and that no miscarriage of discretion was established simply because a greater adjustment was theoretically available.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge making a finding of special circumstances is not required to expressly identify every factor underpinning that finding; appellate courts will not infer error from the absence of explicit reasoning on each submitted factor.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a special circumstances finding requires some adjustment to the standard ratio between the non-parole period and the balance of a sentence, but the degree of adjustment remains within the sentencing judge's discretion and need not be substantial.
  • Where an aggregate sentence is accumulated upon a pre-existing sentence, the accumulation itself has a structural effect that can reduce the proportionate length of the non-parole period, which is relevant to assessing whether special circumstances have been adequately reflected.
  • No error is established merely because a larger reduction in the non-parole period was available or argued; it must be shown that the sentencing discretion actually miscarried.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that appellate intervention in sentencing requires demonstration of identifiable legal error or a sentence outside the range of a sound exercise of discretion, consistent with the principles in House v The King (1936) 55 CLR 499.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
- Criminal Procedure Act 1986 (NSW), ss 166, 168(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- House v The King (1936) 55 CLR 499
- R v Simpson (2001) 53 NSWLR 704
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198
- R v El-Hayek (2004) 144 A Crim R 90
- R v Fidow [2004] NSWCCA 172
- R v Cramp [2004] NSWCCA 264
- Clarke v R [2009] NSWCCA 49
- Trad v R (2009) 194 A Crim R 20
- Hejazi v R (2009) 217 A Crim R 151
- Caristo v R [2011] NSWCCA 7
- Collier v R [2012] NSWCCA 213
- AB v R [2014] NSWCCA 31
- Sabongi v R (2015) 249 A Crim R 167
- Woods v R [2020] NSWCCA 219