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Court of Criminal Appeal 24 November 2023

DG v R (No 1)

[2023] NSWCCA 320

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE TIME DETENTION APPEALS APPEAL AGAINST SENTENCE

Citation: DG v R (No 1) [2023] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 24 November 2023
Judges: Wilson J, Fagan J, Sweeney J

Background

The applicant pleaded guilty in the District Court to five charges arising from drug supply and weapons possession. Over roughly 18 days across December 2021 and February 2022, he controlled a mobile phone used to coordinate cocaine deliveries, directing drivers who collectively delivered 29.5 grams of cocaine. When arrested in April 2022, police found two pistols, 635 rounds of ammunition, and a pistol magazine at his residence.

At the sentencing hearing, the applicant gave unchallenged affidavit evidence that he had become involved in drug distribution to repay debts to criminal associates, had tried to exit that involvement in February 2022, and was then hospitalised for eight days following an assault. Upon his discharge, those associates directed him to store the weapons. The sentencing judge accepted this as non-exculpatory duress (meaning it did not excuse the conduct, but was taken into account as a mitigating circumstance).

The sentencing judge imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months, backdated to commence on the date of arrest, 8 April 2022. The applicant sought leave to appeal on two grounds relevant to this judgment.

  • Whether the sentencing judge was required under s 66(2) of the Crimes (Sentencing) Procedure Act 1999 (NSW) to consider making an intensive correction order (ICO), and whether the judge ought to have reduced the aggregate term below 3 years to bring it within the ICO eligibility threshold
  • Whether the sentencing judge gave sufficient weight to the applicant's uncontested evidence of non-exculpatory duress

Decision

Ground 1: ICO eligibility and sentence construction

An ICO is only available where the aggregate sentence does not exceed 3 years. The applicant argued the judge should have reduced his sentence to 2 years and 6 months, commencing from the date of pronouncement rather than backdating to arrest, and then credited the time already served on remand separately. That approach would have produced an aggregate term technically below the 3-year threshold, potentially engaging the ICO regime.

The Court rejected this argument comprehensively. It confirmed that determining the appropriate length of imprisonment is a prior and entirely separate exercise from deciding whether to order that the sentence be served by way of an ICO. Shortening a sentence, or departing from the settled practice of backdating to give credit for time served, for the specific purpose of circumventing the 3-year cap in s 68(3) would constitute taking an irrelevant consideration into account in the sentencing discretion. The Court reaffirmed that credit for pre-sentence custody is properly given by backdating the commencement date, not by reducing the nominal term.

Ground 3: Non-exculpatory duress

The Court found that the sentencing judge had expressly taken the duress evidence into account. General deterrence remained a significant consideration across all charges. In relation to the drug offence, the Court noted the conduct spanned months well before the assault that resulted in hospitalisation, and that a person in that position was expected to cease offending and, if necessary, seek police protection before 14 months elapsed. As to the firearms offences, the Court emphasised the well-known connection between illegal handguns and drug trade violence, and the need for sentences to be severe enough to deter others from storing weapons at the demand of criminal associates. The Court found no basis to conclude that the duress evidence ought to have produced lower indicative sentences or a lesser aggregate.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the length of a custodial sentence must be determined independently of whether the resulting term will be eligible for an ICO. Availability of an ICO is not a relevant factor in fixing the duration or commencement date of a sentence.
  • Deliberately shortening an aggregate sentence below 3 years, or commencing it from the date of pronouncement rather than backdating, for the sole purpose of accessing the ICO regime constitutes taking an irrelevant consideration into account and is impermissible.
  • Settled sentencing practice requires that credit for time served on remand be given by backdating the commencement date of the sentence to the date of arrest, not by reducing the nominal term and commencing it from the date of pronouncement.
  • Where a sentencing judge expressly takes non-exculpatory duress into account, an appellate court will not automatically conclude that a lesser sentence was warranted. General deterrence can legitimately diminish the practical weight of duress as a mitigating factor, particularly in the context of drug supply and illegal firearms offences.
  • In dismissing the appeal, the Court reinforced that the strength of a deterrence rationale, especially for offences involving illegal handguns connected to the drug trade, can be sufficient to sustain a sentence even where uncontested mitigating evidence exists.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing) Procedure Act 1999 (NSW), ss 7, 66, 68(3), 71(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 74(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Eldridge v R [2011] NSWCCA 144
- Mandranis v R [2021] NSWCCA 97
- R v McHugh (1985) 1 NSWLR 588
- R v Zamagias [2002] NSWCCA 17
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Tiknius v R [2011] NSWCCA 215
- Zheng v R [2023] NSWCCA 64