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Court of Criminal Appeal 21 January 2022

Robson-Bolan v R

[2022] NSWCCA 1

Drugs
CRIMINAL LAW SENTENCING TOTALITY ACCUMULATION AND CONCURRENCE “NOTIONAL” ACCUMULATION TWO DRUG OFFENCES

Citation: Robson-Bolan v R [2022] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 21 January 2022
Judges: Price J, Hamill J (primary reasons), Ierace J

Background

The applicant, a 21-year-old man with no prior convictions, was sentenced in the District Court in March 2021 for two drug offences. The first was supplying approximately 182 grams of cocaine (a State offence carrying a maximum of 15 years). The second was attempting to import approximately 300 grams of cocaine via the dark web, using his own name and home address (a Commonwealth offence carrying a maximum of 25 years). Two further offences, dealing with proceeds of crime and possessing cannabis, were taken into account under s 16BA of the Crimes Act 1914 (Cth).

The original sentences were: a one-year fixed term for the supply offence, commencing 26 February 2020; and 2.5 years for the attempted importation, commencing 26 February 2021, with a minimum term of 18 months. The attempted importation sentence was wholly and actually accumulated on the supply sentence, producing a total effective sentence of 3.5 years with a minimum of 2.5 years.

The applicant sought leave to appeal on the grounds that the sentencing Judge had erred in applying the totality principle and had failed to give adequate reasons for the extent of accumulation.

  • Whether the sentencing Judge erred in applying the totality principle by failing to give effect to a stated finding of "notional" accumulation, when the sentences were in fact wholly and actually accumulated.
  • Whether the sentencing Judge's reasons were adequate to explain the degree of accumulation imposed.
  • Whether the resulting sentence was manifestly excessive.

Decision

The Court of Criminal Appeal found error in the sentencing Judge's approach. The Judge had referred to "notional accumulation" in his remarks on sentence, a phrase that implies some degree of overlap between sentences to moderate the total. However, the sentences as structured were wholly and actually accumulated, with no overlap at all. The Court found the language used was opaque and that the structure of the sentences did not reflect the Judge's stated intention.

The Court also found the reasons were inadequate to explain why the sentences were accumulated to the full extent. Where a sentencing judge departs from concurrent or partially concurrent sentencing, sufficient reasons must explain that departure. The opacity here meant the sentencing exercise was infected by error.

On the totality principle more broadly, the Court reaffirmed that when multiple sentences are imposed, the court must step back and assess whether the overall sentence is proportionate to the totality of the offending. A sentence structure that is inconsistent with the stated reasons undermines this assessment.

Given the error established, the Court re-sentenced the applicant. It took into account all relevant mitigating factors, including his youth, absence of prior convictions, early guilty plea (attracting a 25% discount), genuine remorse, difficult personal history marked by depression and self-harm, and positive rehabilitation in custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed.
  • For the supply offence: fixed term of nine months' imprisonment commencing 26 February 2020, expiring 25 November 2020.
  • For the attempted importation offence: two years and three months' imprisonment commencing 26 August 2020, expiring 25 November 2022.
  • Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant to be released on a recognisance release order after 18 months (that is, on 25 February 2022), upon giving security of $100.

Key Takeaways

  • A sentencing judge who refers to "notional accumulation" but then imposes sentences that are wholly and actually accumulated creates an inconsistency between reasons and outcome that constitutes sentencing error.
  • Adequacy of reasons is a distinct requirement: where substantial accumulation is imposed, the sentencing court must explain with sufficient clarity why that degree of accumulation is warranted.
  • The totality principle requires a sentencing judge to stand back and assess whether the aggregate sentence is proportionate to the overall criminality, regardless of how individual sentences are structured.
  • In re-sentencing, the Court of Criminal Appeal reduced the total effective sentence to 2 years and 9 months (with a minimum of 18 months), reflecting the applicant's significant personal mitigation, early plea, and rehabilitative progress.
  • The decision is consistent with a line of NSW Court of Criminal Appeal authority emphasising that opacity in sentencing structure and reasons will ground appellate intervention: see, for example, Burgess v R [2019] NSWCCA 13, Lee v R [2020] NSWCCA 244, and Noonan v R [2021] NSWCCA 35.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 45, 53A(1)

Cases
- Burgess v R [2019] NSWCCA 13
- Cahyadi v Regina [2007] NSWCCA 1
- Hall v The Queen; Barker v The Queen [2017] ACTCA 16
- JM v R [2014] NSWCCA 297
- JT v R [2012] NSWCCA 133
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2020] NSWCCA 244
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Noonan v R [2021] NSWCCA 35
- R v Hammoud [2000] NSWCCA 540
- R v MMK [2006] NSWCCA 272
- R v Robson-Bolan [2021] NSWDC 48 (sentencing remarks below)
- R v XX [2009] NSWCCA 115
- Vaughan v R [2020] NSWCCA 3
- ZA v R [2017] NSWCCA 132