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Court of Criminal Appeal 29 September 2021

Ozan v R

[2021] NSWCCA 231

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE PAROLE PERIOD TO THE TOTAL SENTENCE PRINCIPLE OF TOTALITY [1988] HCA 70

Citation: Ozan v R [2021] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 29 September 2021
Judges: McCallum JA; Rothman J; Ierace J (primary reasons)

Background

The appellant had been convicted in Western Australia of supply and attempted supply of a prohibited drug (methylamphetamine) and was serving a lengthy 12-year sentence under Western Australian law. He was subsequently sentenced in a NSW District Court for two related offences committed in New South Wales: supply of a prohibited drug and recklessly dealing with the proceeds of crime.

The NSW sentencing judge partially accumulated the non-parole period of the NSW sentence on top of the existing Western Australian non-parole period, extending the overall non-parole period by six months. The Western Australian sentencing regime, under the Sentencing Act 1995 (WA), mandates a notably high ratio of non-parole period to total sentence, already significantly exceeding the 75% threshold that applies in NSW under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant challenged the NSW sentence on appeal, arguing that the partial accumulation was wrong in principle given that the Western Australian non-parole period already exceeded the NSW statutory ratio, and that the sentencing judge had failed to properly apply the totality principle. The appellant had also demonstrated good rehabilitative progress in custody.

  • Whether the NSW sentencing judge erred in partially accumulating the non-parole period, where the Western Australian non-parole period had already exceeded the ratio prescribed by NSW law
  • Whether the principle of totality in Mill v The Queen (1988) 166 CLR 59 was correctly applied when structuring the NSW sentence alongside the pre-existing Western Australian sentence
  • Whether a sentencing court imposing a later sentence is entitled to treat additional criminal conduct as warranting additional punishment in all circumstances, or whether totality may override that general rule
  • Whether the sentence as structured was proportionate and consistent with the purposes of sentencing under NSW law

Decision

The Court of Criminal Appeal allowed the appeal. The primary error identified was that the sentencing judge approached the NSW sentence from a wrong premise, treating the additional criminal conduct as automatically warranting additional punishment without giving sufficient weight to the totality principle.

Ierace J (with McCallum JA agreeing) held that, because the Western Australian sentencing regime already produced an effective non-parole period far exceeding the NSW statutory ratio, any further accumulation compounded that departure from the NSW norm without adequate justification. The court accepted that it was bound to treat the Western Australian sentence as an appropriate exercise of sentencing discretion, and that the NSW sentencing exercise could not be used to correct or adjust any perceived difference between the two jurisdictions' approaches.

Rothman J, in additional reasons, emphasised that the general rule requiring additional punishment for additional criminal conduct gives way to the principle of totality, particularly where all of the offences arose from one course of criminal conduct, being the supply of methylamphetamine and profiting from it. His Honour found that the non-parole period already set by the Western Australian court was more than sufficient to reflect the overall criminality, including the NSW offences.

The Court concluded that a proportionate sentence required the NSW aggregate non-parole period to run wholly concurrently with the Western Australian non-parole period, while the overall sentence was extended to reflect the additional offending. This structure was said to satisfy the purposes of sentencing, including accountability, denunciation, and rehabilitation, without imposing a futilely extended period of incarceration beyond what the applicant was already serving.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The District Court sentence quashed; in lieu, the applicant was sentenced to an aggregate term of imprisonment of 4 years, commencing 25 February 2021 and expiring 24 February 2025, with a non-parole period of 1 year expiring 24 February 2022

Key Takeaways

  • The principle of totality from Mill v The Queen (1988) 166 CLR 59 is not displaced by the general rule that additional criminal conduct warrants additional punishment. Where all offences form part of one course of criminal conduct, totality can require concurrent rather than accumulated non-parole periods.
  • A NSW sentencing court imposing a sentence on an offender already subject to an interstate sentence must treat that earlier sentence as an appropriate exercise of discretion. It cannot seek to correct or adjust any perceived difference in sentencing philosophy between jurisdictions.
  • Consistency in sentencing between jurisdictions is achieved by the consistent application of sentencing principles, not by numerical equivalence across different statutory regimes, as confirmed by reference to Hili v The Queen; Jones v The Queen (2010) 242 CLR 520.
  • Where a prior interstate sentencing regime produces a non-parole period that already significantly exceeds the ratio ordinarily applicable under NSW law, further accumulation of the NSW non-parole period requires clear and good justification. The existence of additional criminal conduct alone does not automatically supply that justification.
  • In dismissing the notion that a higher-than-75% effective non-parole period ratio is automatically an error of law, Rothman J confirmed that such a result is not unlawful but should not occur without good reason, particularly where it arises from the interaction of different state sentencing regimes rather than from any deliberate sentencing choice by the NSW court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44, Pt 4 Div 1A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Misuse of Drugs Act 1981 (WA), ss 6, 33
- Sentencing Act 1995 (WA), s 93

Key Cases:
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 78 ALJR 616
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- House v The King (1936) 55 CLR 499
- R v MAK; R v MSK (2006) 167 A Crim R 159
- Attorney-General v Tichy (1982) 30 SASR 84
- R v Todd [1982] 2 NSWLR 517
- Arnold v R [2011] NSWCCA 150
- Warwick v R [2016] NSWCCA 183