Citation: Meis v R [2022] NSWCCA 118
Court: Court of Criminal Appeal, NSW
Date: 8 June 2022
Judges: Simpson AJA (principal judgment); Rothman J and Button J (agreeing)
Background
The appellant pleaded guilty in the District Court to manufacturing methylamphetamine over a period of approximately one year, and to supplying methylamphetamine on a single occasion. He also admitted two additional offences of possessing precursor chemicals. In February 2021, the sentencing judge imposed an aggregate sentence of 3 years and 3 months, with a non-parole period of 1 year and 8 months.
The appellant had a single prior conviction, from 2008, for a drug supply offence committed in 2007, in respect of which he received a two-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act. No further convictions followed until the present offences. The sentencing judge treated this prior conviction as an aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), accepting the Crown's submission on the point without elaboration.
The appellant sought leave to appeal on the basis that the prior conviction could not properly constitute an aggravating factor in the circumstances, and that the sentencing judge had in any event failed to give adequate reasons for treating it as such.
Legal Issues
- Whether a prior conviction from 2008, in respect of which only a good behaviour bond was imposed, properly constituted an aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge gave sufficient reasons for treating the prior conviction as an aggravating factor
- Whether error having been established, the sentence should be reduced on re-exercise of the sentencing discretion, including in light of the conditions of the appellant's custody
Decision
The Court of Criminal Appeal found that both grounds of appeal were established. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that a prior record of offending is an aggravating factor only where it indicates that the offender is of "bad character" or is unlikely to respond to rehabilitation. The prior conviction here, which attracted only a bond and was followed by more than a decade of offence-free conduct, did not support either of those characterisations. Treating it as an aggravating factor was therefore an error.
The Court also found that the sentencing judge's reasons were insufficient. His Honour had stated simply that the prior conviction was an aggravating matter he would take into account, without explaining what weight he assigned to it or why it warranted that treatment. This failure to provide adequate reasons constituted an independent error.
Because error was established, the Court re-exercised the sentencing discretion. Simpson AJA adopted the sentencing judge's assessment of objective seriousness for each offence and the same discounts for the guilty pleas (25% on the indictable counts, 5% on the section 166 matters). However, the Court also took into account the conditions of the appellant's custody: he had experienced significant hardship arising from Covid-19 restrictions and lockdowns, and had not received an adequate response to his ongoing medical needs. These factors warranted some reduction from the sentence that would otherwise have been appropriate.
The Court noted the appellant's difficult personal history, including multiple bereavements by suicide, a serious injury, significant mental health issues, and genuine remorse. It also accepted that minor disciplinary incidents in custody did not meaningfully undermine his reasonable prospects of rehabilitation.
Orders Made
- Leave granted to appeal against sentence
- Appeal allowed; original sentence quashed
- In lieu of the original sentence, an aggregate term of imprisonment of 3 years imposed, commencing 12 February 2021 and expiring 11 February 2024, with a non-parole period of 1 year and 6 months expiring 11 August 2022
Key Takeaways
- Under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a prior conviction is only properly treated as an aggravating factor where it demonstrates bad character or poor prospects of rehabilitation. A single dated conviction attracting only a good behaviour bond, followed by a lengthy offence-free period, does not necessarily satisfy that test.
- A sentencing court must give adequate reasons for treating a prior conviction as an aggravating factor, including the weight attributed to it. Bare assertion that a prior conviction "is a matter I take into account" does not meet that standard.
- The Court of Criminal Appeal confirmed that hardship in custody, including the effects of Covid-19 restrictions and inadequate access to medical care, can warrant a reduction in the sentence imposed upon resentencing.
- In dismissing any suggestion that minor custodial disciplinary matters undermined the case for rehabilitation, the Court affirmed that the full context of an offender's conduct in custody must be weighed carefully against the backdrop of their broader circumstances.
- Where a sentencing judge errs in identifying an aggravating factor, that error will ordinarily enliven the appellate court's power to re-exercise the sentencing discretion entirely, rather than simply excising the impugned factor.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 53A, Pt 3 Div 1A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 25(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 168, 267, 268
Cases
- Frigiani v R [2007] NSWCA 81
- Johnson v R [2004] NSWCCA 76
- Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Wickham [2004] NSWCA 193
- Shankley v R [2003] NSWCA 253
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14