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Court of Criminal Appeal 29 November 2023

R v Burton

[2023] NSWCCA 299

Drugs
CRIME CROWN APPEAL TOTALITY

Citation: R v Burton [2023] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 29 November 2023
Judges: Leeming JA; Walton J; Fagan J

Background

The respondent, Mr Josiah James Burton, pleaded guilty to four State drug offences arising from conduct in 2020, including three counts of supplying not less than a large commercial quantity of prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW). The quantities involved were extraordinary: one count involved methylamphetamine approximately 12 times the large commercial threshold, another involved GBL at approximately 178 times the threshold, and a third involved 1,4-butanediol at approximately 415 times the threshold.

The respondent had also been sentenced separately for two related federal drug offences (also arising from the 2020 conduct) and, earlier still, for entirely separate State drug offences committed in 2018. The 2018 sentencing had been handled by a different judge and resulted in an aggregate term of 5 years and 6 months with a non-parole period of 2 years and 9 months, backdated to March 2020 when the respondent was taken into custody.

On 21 July 2023, the primary judge (Hunt DCJ) imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years for the 2020 State offences, backdated to commence on 16 April 2021. The DPP appealed, contending that sentence was manifestly inadequate, particularly given the extent of concurrency built into the structure of the sentences and the practical effect that the 2020 State offending added virtually nothing to the total period of imprisonment the respondent would actually serve.

  • Whether the aggregate sentence of 5 years imprisonment for multiple counts of supplying large commercial quantities of prohibited drugs was manifestly inadequate.
  • Whether the degree of concurrency with existing sentences (for both the 2018 State offending and the 2020 federal offending) produced an outcome so lenient as to constitute an affront to justice.
  • How the totality principle should be applied when sentencing for serious offending that overlaps in custody time with sentences already imposed for entirely separate episodes of offending.
  • Whether strong subjective circumstances, including good prospects of rehabilitation and mental illness causally connected to the offending, were capable of justifying the sentence as it stood.

Decision

The Court of Criminal Appeal allowed the appeal, finding the aggregate sentence for the 2020 State offences was manifestly inadequate. The Court identified two compounding problems with the sentence below. First, the indicative sentences and aggregate sentence were substantially below what the gravity of the offending warranted, given that the drug quantities exceeded the large commercial thresholds by orders of magnitude, and the maximum penalty is life imprisonment with a standard non-parole period of 15 years. The undiscounted notional starting points for the indicative sentences were only around 4 years imprisonment, which the Court considered insufficient.

Second, and critically, the structure of the backdating meant that the overwhelming majority of the non-parole period for the 2020 State offences was to be served concurrently with the existing sentence for the 2018 offending. The practical effect was that, had the 2020 State sentence been set aside entirely, it would have made no difference to the total time the respondent would serve. This outcome was inconsistent with the principle that serious offending must produce a meaningful, additional period of imprisonment.

The Court acknowledged the powerful subjective features accepted by the primary judge, including genuine prospects of rehabilitation, very low likelihood of reoffending, and a causal link between a mental illness (contributed to by childhood drug exposure) and the offending. None of those findings were challenged on appeal. However, the Court held that the subjective features, while significant, could not sustain a sentence whose practical effect was to leave the 2020 State offending without any real punitive consequence.

In resentencing, the Court restructured the commencement dates of both the 2020 State and 2020 federal sentences to produce a rational and principled cascade. The revised aggregate sentence for the 2020 State offences was set at 8 years imprisonment with a non-parole period of 4 years and 8 months, commencing 25 March 2022. The overall effective sentence across all three sets of proceedings became 8 years and 6 months with a non-parole period of 5 years and 2 months, representing a non-parole period ratio of approximately 61% for the 2020 offending and 67% across all offending.

Orders Made

  • Appeal allowed.
  • The aggregate sentence of 5 years imprisonment with a non-parole period of 3 years (commencing 16 April 2021) for counts 3, 4, 5 and 6 was quashed and replaced with an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 8 months, commencing 25 March 2022 and expiring 24 November 2026, with a balance of term of 3 years and 4 months expiring 24 March 2030.
  • The sentence for counts 1 and 2 (the 2020 federal offences) was varied to commence on 25 September 2021, with the non-parole period concluding 24 March 2024 and the balance of term expiring 24 September 2026.
  • The earliest date on which the respondent may apply for parole is 25 November 2026.
  • The overall effective sentence is 8 years and 6 months commencing 25 September 2021 and expiring 24 March 2030, with a non-parole period of 5 years and 2 months expiring 24 November 2026.

Key Takeaways

  • A sentence for serious drug offending will be manifestly inadequate where, by reason of backdating and concurrency, it adds no practical period of imprisonment to sentences already being served for separate offending.
  • The totality principle requires that the overall sentencing structure reflect the full criminality involved. It does not, however, permit a sentence for discrete serious offending to become so subsumed within existing sentences that it produces no real additional consequence.
  • Strong subjective circumstances, including good rehabilitation prospects and a causal mental illness, can reduce a sentence significantly but cannot justify an outcome that is effectively a nullity in terms of additional time served.
  • Where an offender has been sentenced for two entirely separate episodes of serious drug offending, the Court of Criminal Appeal confirmed that the respondent should receive a longer overall effective sentence than would apply to a single episode, even after the totality principle is applied.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Crown may appeal a sentence as manifestly inadequate. The Court will intervene where the inadequacy is so marked that it amounts to an affront to justice, and will resentence rather than simply identify error.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 33, 47, 53A
- Criminal Appeal Act 1912 (NSW), ss 5D, 7(1A)
- Criminal Code (Cth), ss 11.1, 11.2, 307.2, 307.5
- Crimes Act 1914 (Cth), ss 16BA, 16E
- Crimes Act 1900 (NSW), s 193C(2)
- Judiciary Act 1903 (Cth), ss 68, 79

Key Cases:
- Attorney-General (Cth) v Huynh [2023] HCA 13
- Green v The Queen (2011) 244 CLR 462
- Postiglione v The Queen (1997) 189 CLR 295
- Mill v The Queen (1988) 166 CLR 59
- Bugmy v The Queen (2013) 249 CLR 571
- Rodgers v R [2018] NSWCCA 47
- Bott v R [2023] NSWCCA 255
- Elmir v R [2023] NSWCCA 260
- Chiarlini v R [2023] NSWCCA 227
- Rizeq v Western Australia (