Citation: R v Kitchener [2003] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 13 May 2003
Judge(s): Wood CJ at CL, Simpson J
Background
The applicant pleaded guilty in the District Court to two counts of supplying methylamphetamine, arising from transactions on 2 March and 16 March 2000. On each occasion he sold quantities of the drug to an undercover police operative, controlling the transaction with a co-accused acting on his instructions. The offences carried maximum penalties of fifteen and twenty years' imprisonment respectively.
The sentencing judge imposed a fixed term of four years and six months on the first count and eight years with a six-year non-parole period on the second count, each sentence commencing on 2 April 2001. The applicant had an extensive criminal history, including prior convictions for sexual assault and drug supply offences, and had been in continuous or near-continuous custody for approximately ten years before the present proceedings.
The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive, that insufficient weight was given to his guilty plea and subjective circumstances, that the commencement date of the sentences caused a form of double punishment by failing to account for time he was serving in custody on parole revocation, and a fourth procedural ground that became unnecessary to resolve.
Legal Issues
- Whether the sentences imposed were manifestly excessive given the objective seriousness of the offences and the applicant's history
- Whether the sentencing judge gave insufficient weight to the applicant's guilty pleas and favourable subjective circumstances
- Whether fixing the commencement date at 2 April 2001 resulted in double punishment by failing to properly account for the period the applicant spent in custody following revocation of his parole in connection with the same offending
Decision
The Court of Criminal Appeal rejected the ground that the sentences were manifestly excessive. Simpson J observed that the applicant's repeated offending gave him no legitimate expectation of leniency and that specific deterrence carried more than usual weight given his history. The sentencing judge had not erred in this respect.
The court also rejected the submission that insufficient weight had been given to the applicant's guilty pleas and subjective circumstances. While the applicant's conduct in custody was consistently described as exemplary across multiple reports, Simpson J found that, in light of his persistent reoffending, this could not be taken as a reliable indicator of rehabilitation.
The successful ground concerned the commencement date of the sentences. The applicant's parole had been revoked in March 2000 following the same conduct that gave rise to the charges. A commencement date of 2 April 2001 failed to account for that period of custody and, in effect, resulted in the applicant being punished twice for the same conduct. The Court found this constituted a sentencing error requiring resentencing.
On resentencing, the Court fixed the commencement date at 1 January 2001, reflecting a notional date by which the applicant might reasonably have expected a further release on parole from the revoked parole period. The head sentences and non-parole period were otherwise maintained.
Orders Made
- Leave to appeal granted
- Appeals allowed; sentences quashed
- Count One: imprisonment for a fixed term of four years and six months, commencing 1 January 2001 and expiring 30 June 2005
- Count Two: imprisonment for eight years, commencing 1 January 2001 and expiring 31 December 2008; non-parole period of six years expiring 31 December 2006
Key Takeaways
- A commencement date for a sentence that fails to account for time already served in custody following parole revocation arising from the same conduct can constitute impermissible double punishment, warranting intervention on appeal.
- Favourable prison reports and model custodial behaviour are not automatically mitigating factors; where a lengthy pattern of reoffending exists, the sentencing court may decline to treat good conduct in custody as evidence of genuine rehabilitation.
- The Court of Criminal Appeal confirmed that specific deterrence may assume heightened importance where an offender has a sustained history of serious criminal conduct and has continued to offend despite prior significant custodial sentences.
- In dismissing the manifest excess ground, the court reinforced that offenders with repeated serious offending histories carry no expectation of lenient treatment, even where subjective circumstances are otherwise favourable.
- Fixing an appropriate commencement date on resentencing required the Court to construct a notional timeline, estimating when the applicant might reasonably have expected release had parole not been revoked, rather than applying a mechanical formula.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
Cases:
- R v Kaiva (NSWCCA, unreported, 9 November 1998)
- R v Parkinson [2001] NSWCCA 244 (unreported, 27 June 2001, revised 1 July 2001)