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Court of Criminal Appeal 10 December 2004

Regina v Kipic; Regina v Elias [2004] NSWCCA 452 revised - 14

[2004] NSWCCA 452

Drugs

Citation: Regina v Kipic; Regina v Elias [2004] NSWCCA 452 revised – 14/12/2004
Court: NSW Court of Criminal Appeal
Date: 10 December 2004
Judges: Tobias JA, Sully J, Hoeben J

Background

Two co-offenders, a male respondent and a female respondent, each pleaded guilty before a Local Court Magistrate to three drug-related charges in 2003 and were committed to the District Court for sentencing. The charges in each case were identical in form: supplying methylamphetamine on three or more separate occasions within thirty consecutive days (carrying a maximum of 20 years' imprisonment), supplying methylamphetamine on a single occasion (maximum 15 years), and supplying cannabis (maximum 10 years).

Both respondents were sentenced by Judge Nicholson SC at the District Court sitting at Campbelltown on 4 June 2004. The sentences imposed were challenged by the Crown as manifestly inadequate, with the Crown bringing appeal proceedings under section 5D of the Criminal Appeal Act 1912 (NSW).

A third co-offender, David Culbert, was also sentenced at the same time, but no Crown appeal was brought in respect of his sentence.

  • Whether the sentences imposed by Judge Nicholson on each respondent were manifestly inadequate for the offences of drug supply, including the serious offence of ongoing supply under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW).
  • Whether the sentencing judge erred in his approach to the discretion available under sentencing legislation, including the weight given to early pleas of guilty, the relevance of the statutory maximum penalty, and the principles from Thomson and Houlton regarding sentence reduction for guilty pleas.
  • What re-sentences were appropriate, having regard to the respondents' personal circumstances and the time already served.

Decision

The Court of Criminal Appeal, in a judgment delivered by Sully J (with Tobias JA and Hoeben J agreeing), allowed both Crown appeals and quashed the sentences imposed at first instance. The Court found that the original sentences were manifestly inadequate given the nature and seriousness of the offences, particularly the ongoing supply charges under section 25A of the Drug Misuse and Trafficking Act.

The judgment records that at the original sentencing hearing, Judge Nicholson engaged in extended exchanges with Crown counsel about the scope of his sentencing discretion, including the significance of early pleas, the availability of non-custodial options, and the principles from Thomson and Houlton. The Court on appeal was not persuaded that the discretion had been properly exercised, given the gravity of the offending.

On re-sentencing, the Court took into account the time the respondents had already been serving various orders since August 2004, the structure of sentences already partially served, and the need to avoid double-punishment. The resulting sentences imposed terms of imprisonment to be served by a combination of home detention (for Counts 1 and 3) and periodic detention (for Count 2), with the head sentence on Count 2 being 2 years and 6 months and a non-parole period of 1 year and 3 months.

The Court noted particular care in structuring the re-sentences so as not to disturb what it described as the overall balance it sought to achieve, and it requested that relevant administrative authorities give proper consideration to remarks made in paragraph 68(v) of the judgment concerning administration of the orders.

Orders Made

In the matter of Elias:
- Crown appeal allowed; sentences quashed.
- Count 1: Fixed term of 1 year and 3 months (13 August 2004 to 12 November 2005), to be served by home detention.
- Count 2: 2 years and 6 months (10 December 2004 to 9 June 2007) with a non-parole period of 1 year and 3 months (to 9 March 2006), to be served by periodic detention at Silverwater Correctional Centre from 30 December 2004.
- Count 3: 1 year (13 August 2004 to 12 August 2005) with a non-parole period of 6 months (to 12 February 2005), to be served by home detention.

In the matter of Kipic:
- Crown appeal allowed; sentences quashed and bond revoked.
- Count 1: Fixed term of 1 year and 3 months (13 August 2004 to 12 November 2005), to be served by home detention.
- Count 2: 2 years and 6 months (10 December 2004 to 9 June 2007) with a non-parole period of 1 year and 3 months (to 9 March 2006), to be served by periodic detention at Norma Parker Correctional Centre, Parramatta, from 30 December 2004.
- Count 3: 1 year (13 August 2004 to 12 August 2005) with a non-parole period of 6 months (to 12 February 2005), to be served by home detention.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Crown appeals against manifestly inadequate sentences under section 5D of the Criminal Appeal Act 1912 (NSW) will succeed where the sentences imposed fail to reflect the objective seriousness of serious drug supply offences.
  • An early guilty plea, while a relevant sentencing consideration under Thomson and Houlton principles, does not automatically convert a custodial sentence into a non-custodial one. The nature of the offending and community expectations remain significant factors in the overall sentencing discretion.
  • Under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW), the offence of ongoing supply of a prohibited drug for material reward carries a maximum of 20 years' imprisonment, a factor the Court treated as a meaningful indicator of legislative seriousness rather than a provision to be minimised.
  • On re-sentencing following a successful Crown appeal, the Court carefully structured new sentences to account for time already served under existing orders, so as to avoid penalising respondents twice for the same period of custody or compliance.
  • Where co-offenders are sentenced together, the absence of a Crown appeal against one co-offender's sentence does not prevent the appellate court from re-sentencing the others at a higher level, provided consistency is maintained where appropriate.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Reg v Clark (unreported, NSWCCA, 15 March 1990)
- Zamagias [2002] NSWCCA 17
- Le Cerf (1975) 8 ALR 349
- Thomson and Houlton (guideline judgment on guilty pleas)
- Jurisic (1998) 45 NSWLR 209
- Wong v The Queen [2001] 207 CLR 584
- Trindall [2002] NSWCCA 364
- Palu [2002] NSWCCA 381