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72
Court of Criminal Appeal 14 May 2021

Mandranis v R

[2021] NSWCCA 97

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE RESENTENCE PENALTIES INTENSIVE CORRECTION ORDERS

Citation: Mandranis v R [2021] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 14 May 2021
Judges: Simpson AJA, Garling J, N Adams J

Background

The appellant was a self-employed motor mechanic who, over a three-week period in October 2019, conducted what amounted to a small drug-dealing operation from his workshop in Fairy Meadow. He pleaded guilty in the District Court to one count of ongoing supply of prohibited drugs (carrying a maximum of 20 years imprisonment) and a related charge of organising drug premises (maximum 12 months). The sentencing judge imposed a three-year sentence with a two-year non-parole period on the primary charge, and a concurrent six-month fixed term on the secondary charge.

The appellant sought leave to appeal on a single ground: that the sentencing judge had mistakenly applied a standard non-parole period of five years to the primary offence, when in fact no standard non-parole period applies to that offence. The Crown conceded the error.

The case required the Court of Criminal Appeal to resentence the appellant from scratch. In doing so, it also addressed several important questions about the construction and application of Intensive Correction Orders (ICOs) under the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred by applying a non-existent standard non-parole period of five years to the ongoing supply offence
  • How the court on resentencing should approach ss 66, 68, 70 and 71 of the Crimes (Sentencing Procedure) Act when considering an ICO
  • Whether a court may first form an intention to impose an ICO and then select a sentence length to satisfy s 68 (which caps ICO-eligible sentences)
  • Whether a court must positively conclude, under s 66, that an ICO is more likely to address reoffending risk than full-time custody
  • Whether an ICO can be made where the sentence is fixed to commence at an earlier date than the date on which it is imposed (relevant where pre-sentence custody creates a backdated commencement)

Decision

The Court confirmed the Crown's concession that the sentencing judge had committed appellable error. Although the judge had correctly stated at the outset that no standard non-parole period applied, he later referred to one of five years as a "guidepost." Under the principles in Kentwell v The Queen (2014) 252 CLR 601, the Court was required to resentence the appellant afresh, without reference to the original sentence.

On resentencing, Simpson AJA considered the appellant's personal circumstances in detail. Four young children, whose mother had died of cancer in April 2020 after the appellant's arrest, were in the care of elderly grandparents. Expert reports assessed the appellant as posing a medium-low risk of reoffending, and his rehabilitation prospects were described as good. Simpson AJA treated the impact of incarceration on the children as a relevant factor, while noting that hardship to third parties is only taken into account in "highly exceptional circumstances."

On the ICO questions, Simpson AJA confirmed that the approach in R v Zamagias [2002] NSWCCA 17, which requires a court first to set the appropriate sentence and only then to consider whether that sentence may be served by way of ICO, remains the proper method. A court cannot start from an intention to impose an ICO and then work backwards to select a sentence length that fits within the statutory ceiling. Section 66 requires a positive finding that an ICO is more likely to address reoffending risk than full-time custody. Where pre-sentence custody means a sentence technically commences before it is imposed, ss 70 and 71 may require an adjusted approach to satisfy the requirements in ss 24(2) and 47(2), and Simpson AJA outlined how such cases should be handled.

N Adams J added that it would be a rare case in which an ICO would be appropriate where the starting-point sentence exceeds three years (before accounting for pre-sentence custody), given that the three-year cap in s 68(3)(b) reflects a legislative intention that more serious criminality is inconsistent with an ICO. The Court left that ultimate question open as it did not arise on the facts.

Orders Made

  • The appeal upheld; the applicant granted leave to appeal
  • Sentences imposed at first instance set aside
  • On the ongoing supply charge (s 25A(1) DMT Act): sentence of imprisonment for 2 years and 6 months, commencing 14 May 2021, to be served by way of Intensive Correction Order (ICO) in the community
  • On the drug premises charge (s 36Z(1)(a) DMT Act): sentence of imprisonment for 19 months, commencing 14 May 2021, to be served by way of ICO
  • Standard ICO conditions applied: no offending; submission to supervision by a community corrections officer
  • Additional conditions: abstention from non-prescribed drugs; no association with five named individuals or other persons from whom drugs were received or supplied
  • The applicant entitled to immediate release subject to procedures for implementation of the orders

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Zamagias process remains the correct approach to ICO sentencing: a court must first determine the appropriate term of imprisonment and only then assess whether the sentence may be served by way of ICO, not the reverse.
  • Under s 66 of the Crimes (Sentencing Procedure) Act, a positive finding is required that an ICO is more likely to address the offender's risk of reoffending than full-time custody; the section does not permit mere neutrality on this question.
  • Where pre-sentence custody causes a sentence to technically commence before the date it is imposed, ss 70 and 71 of the Crimes (Sentencing Procedure) Act may require a modified approach to satisfying the requirements in ss 24(2) and 47(2).
  • Applying a non-existent standard non-parole period as a sentencing "guidepost," even after correctly noting that none applies, constitutes appellable error of law requiring the appellate court to resentence afresh.
  • N Adams J observed that an ICO will rarely be appropriate where the starting-point sentence exceeds three years before pre-sentence custody is deducted, though the Court left the precise legal position on that question open.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 24, 47, 53A, 66, 68, 70, 71, 73
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 36Z(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Zamagias [2002] NSWCCA 17
- Casella v R [2019] NSWCCA 201
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264
- Robertson v R [2017] NSWCCA 205
- Parente v R [2017] NSWCCA 284
- Douar v R [2005] NSWCCA 455
- R v Assaad [2009] NSWCCA 182
- R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18