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Court of Criminal Appeal 8 December 2023

Vu v R

[2023] NSWCCA 315

Drugs
CRIME APPEAL AGAINST SENTENCE ERRONEOUS CONSIDERATION OF STANDARD NON PAROLE PERIODS MATERIAL ERROR RESENTENCE REQUIRED

Citation: Vu v R [2023] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 8 December 2023
Judges: Basten AJA (principal judgment); Walton J and Sweeney J (agreeing)

Background

The appellant was sentenced in the District Court in May 2022 to an aggregate term of nine years' imprisonment with a non-parole period of five years and six months. The sentence arose from three drug-related charges: knowingly taking part in the cultivation of not less than the large commercial quantity of cannabis, deemed supply of a large commercial quantity of cannabis leaf (427 kg, well above the 100 kg threshold), and conspiracy to manufacture a commercial quantity of methylamphetamine. A proceeds of crime matter was also dealt with on a Form 1.

During the sentencing hearing, the sentencing judge expressly flagged concern about the accuracy of the Crown Sentence Summary, having previously encountered errors in cover sheets. No clear response came from either party. As the appeal revealed, the Crown Sentence Summary was incorrect in relation to all three offences, most critically in identifying standard non-parole periods that did not in fact apply to two of the charges.

The appellant sought leave to appeal on three grounds: that the sentencing judge erroneously applied non-existent standard non-parole periods (grounds 1(a) and 1(b)); that the judge made an impermissible factual finding about the proceeds of crime matter (ground 2); and that the judge failed to find the appellant was a person of good character (ground 3).

  • Whether the sentencing judge materially erred by treating a standard non-parole period of 15 years as applicable to the deemed supply of a large commercial quantity of cannabis leaf, when no such period exists under the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether a standard non-parole period applicable to the substantive offence of manufacturing a prohibited drug under s 24(2) of that Act is also engaged by a charge of conspiracy to commit that offence under s 26
  • Whether the judge erred in finding that the money the subject of the proceeds of crime Form 1 was actually the proceeds of crime, rather than merely reasonably suspected of being such
  • Whether the judge erred in failing to find that the appellant was a person of good character

Decision

Ground 1(a): Supply of cannabis leaf. The Crown Sentence Summary incorrectly stated that the deemed supply offence carried a standard non-parole period of 15 years. In fact, no standard non-parole period applied to that offence under the Drug Misuse and Trafficking Act. The Court noted that a standard non-parole period representing 75 per cent of the maximum penalty carries extraordinary practical significance because it signals that a mid-range offence should attract the maximum available sentence. Although the sentencing judge did not explicitly discuss the standard non-parole period after listing it, the Court held that where such a period is identified without being expressly disregarded, it must be assumed to have operated as a guidepost and therefore had adverse effect on the sentencing outcome. The Director of Public Prosecutions conceded this error, and the Court accepted that concession.

Ground 1(b): Conspiracy to manufacture methylamphetamine. The Court undertook a statutory analysis of s 26 and s 33 of the Drug Misuse and Trafficking Act to determine whether a standard non-parole period applicable to the substantive manufacturing offence (s 24(2)) also attaches to a conspiracy to commit that offence. The Court concluded it does not. The Division 1A standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999 operates by reference to a nominated offence provision, and a conspiracy under s 26 is a separate offence, not the same offence as s 24(2). Because either ground 1(a) or 1(b) alone was sufficient to require resentencing, the Court allowed the appeal and proceeded to resentence.

Grounds 2 and 3. The Court addressed both remaining grounds. On ground 2, the Court found that the sentencing judge's comments about the proceeds of crime were properly understood in context and did not constitute a finding beyond the charge's terms. On ground 3, the Court accepted that the applicable principles with respect to good character were correctly applied by the sentencing judge, given the appellant's prior criminal history.

Resentencing. The Court imposed a reduced aggregate sentence of seven years and eight months' imprisonment, with a non-parole period of four years and eight months, backdated to 27 August 2020.

Orders Made

  • Leave to appeal from the aggregate sentence imposed in the District Court on 27 May 2022 granted
  • Appeal allowed; original sentence set aside
  • Appellant resentenced to seven years and eight months' imprisonment, with a non-parole period of four years and eight months, commencing 27 August 2020
  • Non-parole period to expire 26 April 2025; sentence to expire 26 April 2028
  • First eligible parole date: 26 April 2025

Key Takeaways

  • Where a Crown Sentence Summary identifies a standard non-parole period that does not actually apply to the offence charged, and the sentencing court refers to that period without expressly disregarding it, the Court of Criminal Appeal will presume the period operated as a guidepost adversely to the offender, constituting a material error that requires resentencing.

  • A conspiracy to commit an offence under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is a distinct offence under s 26 of that Act and does not attract the standard non-parole period applicable to the underlying substantive offence. This conclusion follows from the structure of the standard non-parole period regime, which attaches to specified offence provisions rather than offences carrying equivalent penalties.

  • Standard non-parole periods function as legislative guideposts in the sense affirmed in Muldrock v The Queen (2011) 244 CLR 120: applying a non-existent or inapplicable standard non-parole period risks pushing a sentence upward without statutory warrant.

  • Sentencing courts relying on Crown Sentence Summaries for maximum penalties and standard non-parole periods bear the risk of error if those summaries are not verified against the legislation itself. The sentencing judge in this case expressly raised that concern but received no useful assistance from either party.

  • In resentencing following a successful appeal on erroneous standard non-parole period grounds, the Court of Criminal Appeal conducts a fresh assessment of all indicative sentences and the totality principle, rather than simply adjusting the original sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 24, 25, 26, 33, Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, Division 1A, Part 4
- Crimes Act 1900 (NSW), s 193C

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Hitchen v R [2023] NSWCCA 51
- R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
- Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Goldberg v R [2018] NSWCCA 99