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33
Court of Criminal Appeal 11 September 2003

Regina v Shankley [2003] NSWCCA 253 revised - 18

[2003] NSWCCA 253

DrugsFirearms & weapons
CROWN APPEAL AGAINST SENTENCE ASSERTED ERRORS AND EFFECT ON SENTENCE

Citation: Regina v Shankley [2003] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 11 September 2003
Judge(s): Greg James J, Howie J, Smart AJ

Background

The respondent pleaded guilty before Judge Coolahan in the District Court to two counts: supplying not less than a commercial quantity of methylamphetamine (carrying a maximum penalty of life imprisonment), and possessing a firearm without authorisation (carrying a maximum of 14 years). He entered his pleas on the morning set for trial, after advising the Crown the previous Friday, allowing witnesses to be stood down. He also asked the sentencing judge to take into account a total of 13 additional matters on two Form 1 schedules (a procedure under which related charges are acknowledged and factored into the penalty without being separately sentenced).

Judge Coolahan sentenced the respondent to 7 years for the first count and 4 years for the second, producing an effective head sentence of 8 years and 3 months with a non-parole period of 7 years and 3 months. The sentences commenced from 9 December 2001 to account for pre-sentence custody already served.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending the sentences were manifestly inadequate and attributing the inadequacy to several specific errors by the sentencing judge.

  • Whether the Court should exercise its discretion to dismiss the Crown's appeal due to delay in both lodging the appeal and bringing it on for hearing
  • Whether Judge Coolahan erred in his understanding of the maximum penalty for the first count
  • Whether the sentence for the first count adequately reflected the Form 1 matters
  • Whether Judge Coolahan misunderstood the respondent's criminal record and its sentencing significance
  • Whether the discount granted for the guilty plea was excessive
  • Whether the sentences imposed were, in the result, manifestly inadequate

Decision

Delay. The Court considered the respondent's argument that the appeal should be dismissed because of delay. The notice of appeal was filed approximately nine weeks after sentence, and the hearing occurred nearly 12 months after sentencing. The Court acknowledged that such delays can engage its discretion to refuse intervention, but found the Crown had notified the respondent of a possible appeal within weeks of sentencing. The delay in listing the hearing was substantially attributable to the respondent's own Notice of Intention to Appeal (which was ultimately not pursued), rather than any fault on the Crown's part. On those facts, the Court declined to dismiss the appeal on discretionary grounds.

Errors at first instance. The Court accepted that Judge Coolahan had made errors in sentencing. These included a misunderstanding of the maximum penalty for the commercial supply offence, insufficient reflection of the serious Form 1 matters in the first count sentence, an error regarding the criminal record, and an excessive plea discount. Each of these errors contributed to sentences that were lower than they should have been.

Manifest inadequacy. The Court found the overall sentences were manifestly inadequate and allowed the appeal. In resentencing, the Court increased the penalty for the first count and significantly increased the second count sentence. The Court also found special circumstances existed in respect of the second count (because it was to be served partly cumulatively on the first), justifying a variation from the standard statutory ratio between non-parole period and head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999.

Addendum. After judgment was delivered, the Court identified a typographical error in Howie J's orders: the non-parole period for the second count was stated as 2 years and 3 months in one place but calculated correctly as 3 years and 3 months elsewhere. The Court issued an addendum correcting this, confirming the intended total minimum custody period before parole eligibility was 8 years and 3 months against a total head sentence of 11 years, consistent with the statutory ratio.

Orders Made

  • The appeal is allowed and the sentences imposed by Judge Coolahan are quashed
  • First count (commercial drug supply, with Form 1 matters): 8 years imprisonment from 9 December 2001, with a non-parole period of 6 years expiring 8 December 2007
  • Second count (firearm possession, with Form 1 matters): 6 years imprisonment commencing 9 December 2006, with a non-parole period of 3 years and 3 months expiring 8 March 2010
  • The respondent's earliest parole eligibility date is 8 March 2010

Key Takeaways

  • The Court of Criminal Appeal confirmed it retains a discretion to refuse a Crown sentence appeal on grounds of delay, but that discretion will not readily be exercised where the delay in hearing was caused or contributed to by the respondent's own interlocutory steps rather than any fault of the Crown.
  • Early written notification to a respondent that a Crown appeal is under consideration is a relevant, though not conclusive, factor in mitigating any prejudice arising from delay between sentencing and appeal.
  • A sentencing judge's misidentification of the applicable maximum penalty is a recognised error capable of vitiating a sentence, particularly for serious offences where the maximum penalty anchors the sentencing range.
  • Where multiple errors are identified (maximum penalty, Form 1 matters, criminal record, and plea discount), their cumulative effect can establish manifest inadequacy even if no single error would be decisive on its own.
  • Partial cumulation of sentences can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing) Act 1999 (NSW), s 37
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Y [2002] NSWCCA 191
- R v Hallocoglu (1992) 29 NSWLR 67
- Pham and Lye (1991) 55 A Crim R 128
- Attorney General's Application under s 37 of the Crimes (Sentencing) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
- Oliver (1980) 7 A Crim R 174
- H (1980) 3 A Crim R 53
- R v Mason [2000] NSWCCA 82
- R v Carr [2002] NSWCCA 434
- Veen v The Queen (No. 2) (1988) 164 CLR 465