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Court of Criminal Appeal 26 May 2004

R v Tolley [2004] NSWCCA 165 revised - 07

[2004] NSWCCA 165

DrugsFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCING CROWN APPEAL SUSPENDED SENTENCE MANIFESTLY INADEQUATE OFFENDER ON FORM 1 MATTER

Citation: R v Tolley [2004] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 26 May 2004
Judge(s): Hodgson JA, Levine J, Howie J

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the manufacture of methylamphetamine, an offence carrying a maximum of 15 years' imprisonment. He also asked the sentencing judge to take into account two further offences on a Form 1: a separate episode of drug manufacture in October 2001, and possession of two unregistered rifles found at the same premises. His role in each offence was permitting his parents' property to be used for the manufacturing activity.

The respondent had been in custody from his arrest on 12 August 2003 until his sentencing on 28 November 2003. He was 36 years old at sentence, had three children, and had prior convictions only for relatively minor Local Court matters. The sentencing judge, O'Reilly DCJ, imposed a two-year sentence of imprisonment but suspended it under section 12 of the Crimes (Sentencing Procedure) Act 1999, requiring the respondent to enter a two-year good behaviour bond.

The Crown appealed under section 5D of the Criminal Appeal Act 1912, contending the suspended sentence was manifestly inadequate. The Director of Public Prosecutions lodged the appeal shortly after sentencing, and the respondent had been at liberty in the community during the intervening period.

  • Whether the suspended sentence was manifestly inadequate in all the circumstances, having regard to the nature and seriousness of the offences
  • Whether the sentencing judge erred by failing to give sufficient weight to the gravity of the firearms offences when fixing sentence
  • Whether the sentencing judge erred by applying a parity argument based on the treatment of the co-offender's matter, which appeared only on a Form 1 rather than as a principal charge
  • What effect the revocation of a section 12 bond has on the operation of section 47 of the Crimes (Sentencing Procedure) Act 1999, particularly in determining when a sentence is "imposed"

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the suspended sentence manifestly inadequate. The sentencing judge had committed two identifiable errors. First, he failed to give proper weight to the seriousness of the firearms offences, which formed part of the total criminality before him. Second, he incorrectly drew a parity comparison with a co-offender whose involvement appeared only as a Form 1 matter, not as the subject of a principal charge. That comparison was an inappropriate foundation on which to reduce the sentence.

Howie J, with whom Levine J agreed, held that the combination of drug manufacturing offences and illegal firearm possession warranted a custodial sentence that was not suspended. Notwithstanding that the respondent had been at liberty under the bond and had made some rehabilitative progress during that period, the Court concluded this was not a case where merely restating the correct principles would suffice; the sentence had to be corrected.

In fashioning the new sentence, Howie J took into account the double jeopardy principle (the respondent was being resentenced after having served time at liberty) and the rehabilitation achieved during the period at large. These considerations justified special circumstances, allowing the non-parole period to remain at one year rather than being extended, and the total term of two years was retained. The sentence was backdated to 13 August 2003, the date the respondent was originally taken into custody.

Hodgson JA added a separate observation on the section 47 question. He concluded that, upon revocation of a section 12 bond under section 99 of the Crimes (Sentencing Procedure) Act, the phrase "the day on which the sentence is imposed" in section 47 should be read as the day the sentence takes effect rather than the day it was originally pronounced. A literal interpretation would produce anomalous results in the revocation context, and this construction avoids them.

Orders Made

  • The appeal is allowed.
  • The sentence imposed by O'Reilly DCJ is quashed.
  • The respondent is sentenced to a total term of two years' imprisonment comprising:
  • A non-parole period of one year, commencing 13 August 2003 and expiring 12 August 2004, on which date he is to be released to parole.
  • A parole period of one year, commencing 13 August 2004 and expiring 12 August 2005.
  • Conditions of parole to include supervision by the Probation and Parole Service.
  • The respondent is to be returned to custody forthwith.

Key Takeaways

  • A sentencing court commits error by drawing a parity comparison with a co-offender whose involvement in similar conduct features only as a Form 1 matter, rather than as a principal charge; the two situations are not equivalent for parity purposes.
  • Failure to give adequate weight to the seriousness of firearms offences when they form part of the total criminality before the court constitutes a specific, identifiable sentencing error capable of founding a successful Crown appeal.
  • Double jeopardy and rehabilitation during a period at liberty under a suspended sentence are relevant considerations when the Court of Criminal Appeal resentences following a Crown appeal, and may justify a finding of special circumstances that moderates the non-parole period.
  • Under section 99 of the Crimes (Sentencing Procedure) Act 1999, when a section 12 bond is revoked, the phrase "the day on which the sentence is imposed" in section 47 should be construed as the day the sentence takes effect, not the day it was originally pronounced, to avoid anomalous results.
  • Where a sentencing error is serious and the respondent has not yet served an appropriate period in custody, the Court of Criminal Appeal will not limit itself to restating correct principles; it will intervene and impose a revised sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 12, 21A, 37, 44, 45, 46, 47, 49, 50
- Criminal Appeal Act 1912 (NSW): s 5D
- Drug Misuse and Trafficking Act 1985 (NSW): s 24(1)
- Firearms Act 1996 (NSW): ss 3, 36(1)
- Crimes Act 1900 (NSW): s 350
- Criminal Procedure Act 1986 (NSW): Table 1
- Sentencing Act: s 99

Cases
- R v Brady (1998) ABCA 7
- R v Finnie (No 2) [2004] NSWCCA 150
- R v Hunt [2002] NSWCCA 266
- R v Gamgee (2001) 51 NSWLR 707
- R v Turkmani [2002] NSWCCA 388
- R v Haydon (NSWCCA, unreported, 11 November 1990)
- R v Cromarty [2004] NSWCCA 54
- R v Thurgar (1999) 51 A Crim R 109
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- R v Hodges (NSWCCA, unreported, 20 August 1997)