Citation: R v Boyd [2022] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 10 June 2022
Judges: Macfarlan JA; Rothman J; Dhanji J
Background
The respondent was sentenced in the District Court at Parramatta on 25 October 2021 for five drug supply offences under the Drugs (Misuse and Trafficking) Act 1985 (NSW) and one count of assault occasioning actual bodily harm in company under the Crimes Act 1900 (NSW). The drug offences involved the supply of large commercial quantities of methylamphetamine, MDMA, amphetamine, and ephedrine, uncovered through an undercover NSW Police Force operation spanning 2018 to 2019. The respondent had previously been convicted of drug supply offences in 2011 and received a 7.5-year sentence on that occasion.
The assault offence was committed while the respondent was on remand for the drug matters. Surveillance footage captured the respondent and a co-offender pursuing a victim in a correctional centre, then taking turns punching, kicking, and stomping on the victim while he lay on the ground in a foetal position attempting to protect himself. The assault lasted approximately 28 seconds and caused bruising, tenderness, headache, and blurred vision, though the victim was discharged from hospital without overnight admission.
Her Honour Judge Harris imposed an aggregate sentence of 9 years' imprisonment, with a non-parole period of 5 years and 9 months. The Crown appealed on a single ground: that the aggregate sentence was manifestly inadequate.
Legal Issues
- Whether the aggregate sentence of 9 years was manifestly inadequate having regard to the nature and volume of the drug supply offences and the separate assault committed in custody.
- Whether the sentencing judge erred in structuring the accumulation of the assault sentence against the drug sentences, particularly given the assault was wholly unrelated to and committed after the drug offences.
- Whether, even if manifest inadequacy were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence the respondent.
Decision
The Court of Criminal Appeal found that the aggregate sentence was manifestly inadequate. Rothman J concluded that the indicative sentence for the assault of 3 years and 3 months, when accumulated against the drug sentences, produced an overall term that did not sufficiently reflect the seriousness of the assault as a standalone, separate, and unrelated offence committed in custody. The assault warranted greater accumulation than the sentencing judge imposed.
Despite this finding, the Court declined to intervene. The majority exercised the so-called "residual discretion" that exists in Crown appeals, under which an appellate court may find error but still decline to re-sentence if intervening would be unjust or if no issue of principle requires correction. The Court noted that the respondent had already served a significant portion of the sentence, and the circumstances did not require the Court to intervene in the interests of principle or consistency.
Dhanji J wrote separately, providing additional observations concurred in by Macfarlan JA. The Court emphasised that the residual discretion in Crown appeals is a recognised and legitimate feature of the appellate function, not a departure from principle, and its exercise here was appropriate on the particular facts.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that a finding of manifest inadequacy does not automatically compel re-sentencing on a Crown appeal: the residual discretion permits the Court to decline to intervene even where error is identified.
- Insufficient accumulation of a sentence for a wholly unrelated assault (committed in custody while on remand) against pre-existing drug sentences can render an aggregate sentence manifestly inadequate, even where individual indicative sentences are not themselves erroneous.
- The residual discretion in Crown sentence appeals serves to prevent injustice in individual cases and applies where no issue of principle requires the Court's correction of the sentence.
- A prior drug supply conviction, a large volume of drugs supplied across multiple transaction types, and an assault committed in custody while on remand are all factors that bear significantly on objective seriousness and the appropriate level of accumulation in sentencing.
- Where an offender commits a further offence in custody after arrest for separate matters, that subsequent offending calls for meaningful additional accumulation to reflect its wholly distinct criminality.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), s 5D
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25
Cases:
- Abdul v R [2019] NSWCCA 18
- Assam v R [2019] NSWCCA 12
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- CMB v Attorney-General (NSW) (2015) 258 CLR 346; [2015] HCA 9
- Cullen v R [2014] NSWCCA 162
- Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
- Devaney v R [2012] NSWCCA 285
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194
- Dunshea v R [2016] NSWCCA 244
- Edmonds v R [2022] NSWCCA 103
- Faraj v R [2022] NSWCCA 31
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huang v R [2017] NSWCCA 312
- Jackson v R [2019] NSWCCA 101