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Court of Criminal Appeal 16 December 2021

Spinks v Director of Public Prosecutions (Cth)

[2021] NSWCCA 308

Drugs
CRIME APPEAL AND REVIEW APPEAL AGAINST SENTENCE APPEAL AND REVIEW PROCEDURAL FAIRNESS APPEAL AND REVIEW

Citation: Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judge(s): Basten JA; Adamson and Wright JJ

Background

The appellant was 18 years old when he imported 124.3 grams of MDMA (approximately 90.74 grams at 75% purity) into Australia by ordering it through the dark web. He collected the parcel from an Australia Post outlet at Tweed Heads and was arrested on the spot. He pleaded guilty to importing a marketable quantity of a border controlled drug under s 307.2 of the Criminal Code (Cth).

At first instance, the District Court sentenced the appellant to three years' imprisonment with a pre-release period of 18 months, applying a 25% discount for the early guilty plea. The sentencing judge did not, however, state the length or conditions of the post-release recognizance period aloud in open court.

The appellant sought leave to appeal on grounds that the sentencing judge failed to give proper weight to his youth, prior good character, and rehabilitation prospects; wrongly dismissed his substance abuse disorder as a mitigating factor; gave excessive weight to general deterrence; and imposed a manifestly excessive sentence.

  • Whether the sentencing judge failed to give proper weight to the appellant's youth and immaturity at the time of offending
  • Whether the substance abuse disorder reduced moral culpability or was a mitigating factor
  • Whether the judge erred in placing heavy emphasis on general deterrence
  • Whether evidence given by the appellant at the sentencing hearing, which engaged the statutory personal-use defence under s 307.2(4) of the Criminal Code (Cth), was handled in a procedurally fair manner
  • Whether the failure to state the recognizance release period in open court, in the presence of the offender, constituted a procedural error requiring correction
  • Whether the personal-use evidence should have been treated as a mitigating factor going to objective seriousness

Decision

Ground 1: Youth and immaturity. The Court of Criminal Appeal found that the sentencing judge had not given proper weight to the appellant's youthfulness and immaturity. The appellant was 18 at the time of offending, and evidence indicated that his drug use had begun at a younger age, contributing to a substance abuse disorder. The Court accepted that immaturity affected his conduct and that this warranted meaningful mitigation.

Procedural fairness: the recantation episode. During the sentencing hearing, the prosecutor elicited evidence from the appellant that neither he nor his co-contributors intended to sell the drugs. This engaged the personal-use defence in s 307.2(4), which the sentencing judge treated as inconsistent with the guilty plea. The judge gave the appellant the choice to recant the evidence or face a trial. What followed was described by the Court as a "reluctant recantation." The Court found this process was procedurally unfair, and that the original evidence, which was consistent with the defence, should not have been used adversely to the appellant's credit. Furthermore, the evidence of limited expectation of sale should have been treated as a factor reducing the objective seriousness of the offending.

The recognizance period. The sentence as pronounced in open court did not specify the length of the post-release recognizance period or its conditions. The Court reaffirmed that basic procedural fairness requires an offender to be present and sentenced in open court, and that the whole of the sentence must be conveyed to the offender at that time. The failure to announce the recognizance period constituted a procedural error requiring correction by this Court.

Grounds 2 and 3. The Court found that the sentencing judge did not err in declining to treat the substance abuse disorder as reducing moral culpability, and that the emphasis on general deterrence for this class of offence was not an error. Those grounds failed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on Ground 1 (youth and immaturity) and the procedural grounds
  • The appellant resentenced to a total term of 2 years and 3 months (reflecting a 25% guilty plea discount on a starting point of 3 years)
  • Period of full-time custody: 15 months
  • Recognizance release order: a further 12 months post-release
  • Grounds 2 and 3 dismissed
  • Ground 4 (manifest excess) not necessary to address given resentencing

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge fails to give proper weight to an offender's youth and immaturity, particularly where drug use began at a young age and contributed to a substance abuse disorder, that constitutes a sentencing error enlivening the obligation to resentence.

  • Procedural fairness in sentencing requires that the entirety of the sentence, including the period and conditions of any recognizance release order, be pronounced in open court in the presence of the offender. Recording those details only in court registry orders is insufficient.

  • Where an offender gives evidence at a sentencing hearing that is consistent with a statutory defence, and is then pressured by the court or prosecutor to recant or change plea, the resulting recantation cannot fairly be used to the offender's credit disadvantage.

  • Under s 307.2(4) of the Criminal Code (Cth), evidence that an offender imported drugs predominantly for personal use and did not intend to sell them is capable of reducing the objective seriousness of the offending, even where it falls short of establishing the full statutory defence.

  • Identifying a procedural error of sufficient magnitude, combined with substantive sentencing errors, triggers the Court of Criminal Appeal's obligation to resentence rather than merely correct the original sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 307.2, 307.7
- Crimes Act 1914 (Cth), ss 19AC, 19AH, 19AHA, 20
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Abdul v R [2019] NSWCCA 18
- Azzopardi v The Queen [2011] VSCA 372; 219 A Crim R 369
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Byrne v R; Cahill v R [2021] NSWCCA 185; 97 MVR 85
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Mourtada v R [2021] NSWCCA 211
- Tamer v R [2020] NSWCCA 333