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Court of Criminal Appeal 1 June 2001

Regina v Clarke [2001] NSWCCA 223 revised - 7

[2001] NSWCCA 223

Drugs
SENTENCING APPLICATION OF PRINCIPLE OF TOTALITY

Citation: Regina v Clarke [2001] NSWCCA 223 revised - 7/08/2001
Court: NSW Court of Criminal Appeal
Date: 1 June 2001
Judge(s): Smart AJ, Dowd J, Einfeld AJ

Background

The applicant, a man in his early fifties, pleaded guilty in the District Court to two separate drug offences. The first was a State offence of supplying a large commercial quantity of methylamphetamine (1.8 kilograms of mixture), committed in December 1997 while he was on parole for an armed robbery conviction. The second was a Commonwealth offence of possessing a prohibited import, namely 62.8 grams of pure heroin, detected in October 1999 while he was on bail for the first offence.

At sentencing, District Court Judge Sides imposed a seven-year sentence for the State offence and a three-year sentence for the Commonwealth offence, directed to be served cumulatively. The total effective head sentence was ten years, with eligibility for release on parole after six and a half years. The sentences commenced on 4 May 2000, though it later emerged that the judge had incorrectly calculated the pre-sentence custody, which was 59 days rather than 51.

The applicant sought leave to appeal against the severity of both sentences, arguing that the overall punishment was excessive when the totality principle was properly applied.

  • Whether the cumulative sentences, totalling a ten-year head sentence, were excessive having regard to the principle of totality
  • Whether the sentencing judge erred by failing to expressly decline to fix a non-parole period for the Commonwealth offence
  • Whether the sentencing judge erred by not quantifying the discount applied for the guilty pleas

Decision

The Court of Criminal Appeal accepted that the Commonwealth sentence of three years, with no non-parole period stated, contained a formal error: the sentencing judge had not expressly declined to set a non-parole period, as required. The appeal against that sentence was allowed on that technical ground, though the Court did not increase the period of imprisonment itself, regarding three years as already the lowest permissible point for that offence.

On the totality argument, the court found that a combined head sentence of ten years was excessive and fell outside the permissible range given the circumstances of the two offences. The principle of totality requires a court to step back from the arithmetic of cumulative sentences and assess whether the total punishment is proportionate to the overall criminality involved. Applying that principle, the court reduced the State offence sentence from seven years to five and a half years, bringing the total effective head sentence to eight and a half years, with a combined non-parole period of five and a half years.

On the guilty plea discount point, the court rejected the applicant's argument that the sentencing judge was required to specify the numerical discount for the pleas. While the Court of Criminal Appeal had encouraged such transparency in earlier decisions, a judge is not legally obliged to express the discount as a precise figure. The court was satisfied that the sentencing judge had taken the pleas into account in mitigation, and no error was established on this ground.

Orders Made

  • Leave to appeal against the Commonwealth offence sentence granted; appeal allowed; sentence quashed; in lieu, the applicant sentenced to 3 years imprisonment commencing 26 April 2000; no non-parole period set
  • Leave to appeal against the State offence sentence granted; appeal allowed; sentence quashed; in lieu, the applicant sentenced to 5½ years imprisonment commencing 26 April 2003, with a non-parole period of 2½ years commencing that date and ending 25 October 2005

Key Takeaways

  • The totality principle requires a sentencing court to assess whether the overall effect of cumulative sentences is proportionate, not merely to add individual sentences together arithmetically.
  • Where a cumulative total falls outside the permissible range, the appropriate remedy may be to reduce one component sentence rather than disturb another that is already at the lowest permissible point.
  • A sentencing judge imposing a Commonwealth sentence must expressly decline to set a non-parole period if none is intended; failing to do so constitutes a formal error warranting correction on appeal.
  • No obligation exists on a sentencing judge to state the precise numerical discount allowed for guilty pleas, provided it is clear from the reasoning that the pleas were taken into account in mitigation.
  • The Court confirmed that an incorrect pre-sentence custody calculation requires any re-imposed sentences to be backdated to the accurate commencement date.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)

Cases
- R v Visconti (1982) 2 NSWLR 104
- R v Pearce (1998) 194 CLR 610
- R v Close (1993) 65 A Crim R 55
- R v Longley, NSWCCA, unreported, 21 April 1994
- R v Heard, NSWCCA, unreported, 5 April 2000
- R v Watt, NSWCCA, unreported, 22 March 2000
- R v Langbein, NSWCCA, unreported, 29 May 2000
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Thompson; R v Houlton (2000) 115 A Crim R 104