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Court of Criminal Appeal 24 July 2024

R v Butler

[2024] NSWCCA 133

Drugs
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY CONTROLLED DRUGS CUSTODY” AND BACKDATE D THE SENTENCE

Citation: R v Butler [2024] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 24 July 2024
Judges: Ward P at [1]; Campbell J at [2]; Button J at [69]

Background

The respondent pleaded guilty in the District Court to aiding and abetting an attempted possession of a commercial quantity of cocaine that had been unlawfully imported, contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). The offending occurred over approximately two weeks in February and March 2019, involving a broader conspiracy by five co-offenders to take possession of cocaine concealed in aluminium ingots imported from Mexico. One of those co-offenders was an employee of the respondent.

The respondent was not arrested until March 2021, more than two years after the offending. He was granted conditional bail the day after his arrest and remained on bail for approximately three years until his sentencing in the District Court on 21 March 2024.

At sentencing, Judge Scotting imposed a three-year term of imprisonment, backdated to commence on 22 September 2023, on the basis that the respondent's more onerous bail conditions during the preceding eighteen months amounted to a form of "quasi-custody." The effect of the backdating, combined with a recognizance release order (RRO) requiring the respondent's release after six months, was that the respondent served no actual custodial time beyond two days following his initial arrest. The Commonwealth Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate because of the erroneous backdating.

  • Whether the sentencing judge erred by treating the respondent's bail conditions as pre-sentence custody and backdating the sentence on that basis.
  • Alternatively, whether the bail conditions amounted to "quasi-custody" so as to justify backdating the commencement of the sentence by six months.
  • If error was established, whether the Court of Criminal Appeal should exercise its residual discretion not to intervene and decline to re-sentence the respondent.

Decision

Issue 1: Pre-sentence custody. The Court found that the sentencing judge's reference to "pre-sentence custody" was, when read fairly in context, a slip intended to mean "pre-sentence quasi-custody." The Court reasoned that if the sentencing judge had genuinely treated the bail period as actual pre-sentence custody, the backdating would have covered the full eighteen months of onerous conditions rather than only six months. No error of that kind was established.

Issue 2: Quasi-custody. The Court found error on this ground. Applying the test from R v Quinlin and the reasoning in La v R, the bail conditions to which the respondent was subject could not, without more, constitute quasi-custody so as to justify backdating the sentence. The sentencing judge was not entitled to backdate the commencement of the sentence on that basis, and the resulting sentence was therefore manifestly inadequate.

Issue 3: Residual discretion. Despite identifying error, the Court exercised its residual discretion not to interfere with the sentence and dismissed the appeal. Campbell J noted the respondent's impressive and substantial progress towards rehabilitation, his prior good character, his remission from substance abuse, the negligible risk of reoffending, and the deleterious impact of the lengthy delay on his mental health. Campbell J also noted that the five-year RRO, the maximum permissible, extended two years beyond the sentence itself. Ward P and Button J agreed, though Ward P expressed a firm view that the offending warranted a custodial sentence and that the error had produced an inappropriately short period of custody. Nevertheless, all three judges concluded that the Crown had not negated the residual discretion not to intervene.

Orders Made

  • The Crown appeal is dismissed, in the exercise of the Court's residual discretion.

Key Takeaways

  • Bail conditions, without more, do not constitute "quasi-custody" sufficient to justify backdating a sentence under the test applied in R v Quinlin and La v R. The Court of Criminal Appeal confirmed this principle in the context of a Commonwealth drug trafficking offence.
  • In dismissing the appeal, the Court reaffirmed that there is no presumption that serious drug offences contrary to the Criminal Code (Cth) must attract a period of full-time custody. Non-custodial options remain within the available range in appropriate cases, consistent with the reasoning in Parente v R.
  • A finding of legal error does not automatically lead to re-sentencing on a Crown appeal. The Court of Criminal Appeal retains a residual discretion to decline to intervene even where error is established, and may exercise that discretion where compelling circumstances exist.
  • Substantial post-offence rehabilitation, significant delay between offending and sentencing, and the adverse impact of that delay on an offender's mental health are all capable of weighing heavily in the exercise of the residual discretion, even where the original sentence is found to be manifestly inadequate.
  • Where a sentencing judge's reasons contain an ambiguous or apparently erroneous characterisation, the Court of Criminal Appeal will read those reasons fairly and as a whole before concluding that a specific error was made, in accordance with the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)
- Crimes Act 1914 (Cth), ss 16A, 16E, 19AC, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Criminal Appeal Act 1912 (NSW), s 5D
- Bail Act 2013 (NSW), ss 7, 20, 20A, 22B
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Judiciary Act 1903 (Cth), s 80

Cases
- R v Quinlin [2021] NSWCCA 274
- La v R [2021] NSWCCA 136
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Griffiths v The Queen (1977) 137 CLR 293
- House v The King (1936) 55 CLR 499
- CMB v Attorney General for NSW (2015) 256 CLR 346
- Kentwell v The Queen (2014) 252 CLR 601
- Bugmy v The Queen (2013) 249 CLR 571
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Bredal [2024] NSWCCA 75
- Hordern v R [2019] NSWCCA 138
- Frlanov v R [2018] NSWCCA 267
- Clarke v R [2015] NSWCCA 232
- AB v R [2014] NSWCCA 339
- Hoskins v R [2016] NSWCCA 157
- Hunt v R [2021] NSWCCA 192
- Hello v R [2010] NSWCCA 311
- R v Anderson [2012] NSWCCA 175