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Court of Criminal Appeal 12 November 2004

R v ROWLEY [2004] NSWCCA 390 revised - 23

[2004] NSWCCA 390

DrugsTheft & property
CRIMINAL LAW SENTENCING PRINCIPLES DRUG COURT COMPETENCY OF APPEALS

Citation: R v Rowley [2004] NSWCCA 390
Court: Court of Criminal Appeal (NSW)
Date: 12 November 2004
Judge(s): Newman AJ

Background

The appellant pleaded guilty in the Drug Court to two counts on indictment (aggravated break, enter and steal; and break, enter and steal), three matters on a Form 1, and a summary goods-in-custody offence. The offences involved residential burglaries, possession of cannabis, and possession of stolen property. Fingerprint evidence linked the appellant to the break-and-enter offences, and his criminal history was described as lengthy.

Under the Drug Court Act 1998, the sentencing judge imposed initial sentences and suspended their execution for the duration of the appellant's Drug Court rehabilitation program. The appellant's program was terminated in May 2003 before completion. The sentencing judge then imposed final sentences under s 12 of the Drug Court Act, mirroring the original terms.

The appellant challenged the final sentences on appeal, arguing they were inadequate in accounting for his guilty pleas and his subjective circumstances, including his participation in the rehabilitation program.

  • Whether the Court of Criminal Appeal had jurisdiction to hear the appeal, and what part of the challenge fell within s 5AF of the Criminal Appeal Act 1912 (to be determined by a single judge)
  • Whether the sentencing judge gave sufficient weight to the appellant's guilty pleas in imposing the final sentences
  • Whether the sentencing judge gave adequate consideration to the appellant's subjective circumstances, including his partial participation in the Drug Court program

Decision

Newman AJ, sitting as a single judge under s 5AF of the Criminal Appeal Act 1912, dealt with the so-called "category one" offences: those which had been the subject of a final sentence under s 12 of the Drug Court Act. A collegiate bench of the Court of Criminal Appeal had already resolved the jurisdictional questions prior to this judgment.

On the plea of guilty ground, Newman AJ rejected the submission that the sentencing judge had failed to acknowledge the discount. Relying on the principle in R v Simpson, the failure of a sentencing judge to quantify a guilty plea discount does not in itself constitute error. The sentences imposed were described as sitting at the very bottom of the available range, which indicated that a substantial reduction had already been applied.

On the subjective circumstances ground, Newman AJ found that the initial and final sentences were both at the lower end of the available range. This indicated the sentencing judge had already factored in any favourable subjective matters. The appellant's failure to complete the Drug Court program was treated as a significant consideration: having been offered a meaningful opportunity for rehabilitation, the appellant did not take it, and that default did not entitle him to further leniency.

Across all grounds, no error in the sentencing judge's approach was established, and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to explicitly quantify the discount given for a guilty plea does not constitute appellate error, provided the plea was acknowledged and the sentence reflects a reduction.
  • Where sentences are imposed at the very bottom of the available range, an appellate court may infer that the sentencing judge gave full weight to favourable subjective circumstances, even if those circumstances were not extensively articulated.
  • Partial participation in a Drug Court rehabilitation program does not automatically attract a further reduction in the final sentence, particularly where the offender failed to complete the program.
  • Under the Drug Court Act 1998, the sentencing process operates in two stages: an initial sentence suspended during the program (s 7), and a final sentence determined after program termination (s 12). The appeal concerned the latter.
  • No error was established in the sentencing judge maintaining the same sentence at the final stage as had been set initially, where those initial sentences were already at the lower end of the sentencing range.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5AF
- Drug Court Act 1998 (NSW), ss 7, 11, 12
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 527C(1)(a), 527C(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v Simpson [2001] NSWCCA 534