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Court of Criminal Appeal 12 September 2001

Regina v Keith Brown [2001] NSWCCA 367 revised - 21

[2001] NSWCCA 367

Drugs

Citation: Regina v Keith Brown [2001] NSWCCA 367 revised – 21/09/2001
Court: NSW Court of Criminal Appeal
Date: 12 September 2001
Judge(s): Sully J; Carruthers AJ

Background

The appellant pleaded guilty in the District Court at Newcastle to two counts of deemed supply of methylamphetamine, each carrying a statutory maximum of 15 years' imprisonment. Two additional matters involving possession of amphetamine and cannabis were placed before the sentencing judge on a Form 1 and taken into account. The offending spanned October 1999 to February 2000 and involved quantities of 27.5 grams and 22.8 grams of methylamphetamine respectively.

The sentencing judge imposed four years' imprisonment (with a two-year non-parole period) on the first count and five years' imprisonment (with a three-year non-parole period) on the second, both commencing on 1 September 2000. The appellant had spent approximately seven weeks in pre-sentence custody, which the judge noted she had taken into account but did not explicitly reflect through backdating.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that both sentences were manifestly excessive given the drug quantities, the nature of the drug, his co-operation with police, his guilty plea, and evidence of significant rehabilitation steps taken during his period in pre-sentence custody.

  • Whether the sentences imposed on each count were manifestly excessive in all the circumstances.
  • Whether the sentencing judge erred by failing to backdate the sentences to account for the seven weeks spent in pre-sentence custody.
  • Whether, if intervention was warranted, the appropriate remedy was a modest adjustment rather than a substantial reduction.

Decision

The Court of Criminal Appeal did not identify a specific, particular error of law in the sentencing judge's remarks. The Court noted that her Honour's failure to backdate the sentence would have been better avoided, with reference to established principles on pre-sentence custody, though the Court did not characterise it as a standalone appellable error sufficient in itself to require intervention.

The Court found, however, that the sentences were heavy to a degree that placed them outside the upper end of the permissible range, though only marginally so. The Court was particularly influenced by uncontradicted evidence that the appellant had taken substantial and successful steps toward rehabilitation from drug addiction during his seven weeks in pre-sentence custody. That factor, in the Court's view, had not been adequately reflected in the result achieved by the original sentences.

The Court intervened in a "prudently restrained" manner. It declined to disturb the structure of the sentence on count one but substituted an identical sentence on count two in place of the heavier original. The two sentences were then ordered to run concurrently. The Court also backdated both sentences by seven weeks to make explicit that the appellant received full credit for his time in pre-sentence custody.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentences imposed in the District Court quashed.
  • In lieu, on count 1: imprisonment for four years commencing seven weeks prior to 1 September 2000, with a non-parole period of two years commencing on that same day.
  • On count 2: identical sentence, commencing on the same backdated date, with the same non-parole period, to be served concurrently with count 1.

Key Takeaways

  • Manifest excess, even when not attributable to a specific identifiable error of law, can still justify appellate intervention where the overall sentencing outcome falls outside the permissible range.
  • Evidence of genuine and substantial rehabilitation steps taken during pre-sentence custody is a material factor in sentencing and may bear on whether a sentence miscarried.
  • A sentencing court that notes pre-sentence custody but does not backdate sentences risks creating uncertainty about whether that custody was properly credited. The Court of Criminal Appeal confirmed that explicit backdating is the preferable approach, drawing on the principles discussed in R v Deeble.
  • Appellate intervention in sentencing need not produce sweeping reductions. The Court reduced the second sentence to match the first and ordered concurrency, rather than imposing substantially lower terms.
  • Where two offences are related and of comparable seriousness, concurrent sentences of equal length may appropriately reflect totality without the need for a heavier cumulative or partially cumulative structure.

Legislation and Cases Referenced

Cases:
- R v Deeble (unreported), NSW Court of Criminal Appeal, 19 September 1991 (principles on pre-sentence custody and backdating)

Legislation:
- No specific legislation was cited by name in the judgment text, though the statutory maximum penalty of 15 years' imprisonment for supply of a prohibited drug (methylamphetamine) was referenced in the context of sentencing.