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Court of Criminal Appeal 11 May 2004

Regina v Way [2004] NSWCCA 131 revised - 23

[2004] NSWCCA 131

Also reported as (2004) 60 NSWLR 168
Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ONGOING SUPPLY POSSESS PROHIBITED DRUG ON FORM 1 PLEA OF GUILTY WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Court: NSW Court of Criminal Appeal
Date: 11 May 2004
Judge(s): Spigelman CJ, Wood CJ at CL, Simpson J

Background

The applicant pleaded guilty in the District Court to two counts: supplying a commercial quantity of methylamphetamine (280 grams, approximately 10 ounces) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, and ongoing supply of methylamphetamine involving three street-level sales to an undercover officer. A further possession offence was taken into account on a Form 1. The offending arose from a controlled police operation in the Coffs Harbour area in early 2003.

The sentencing judge in the District Court imposed concurrent sentences of 13 years and 4 months (with a 10-year non-parole period) for the supply count, and a fixed term of 3 years for the ongoing supply count. The applicant had a prior drug-related conviction, though the District Court sentence would have been his first time in custody.

The applicant sought leave to appeal against the severity of those sentences, raising several grounds concerning the sentencing judge's approach to the guilty plea discount and the application of the standard non-parole period provisions.

  • Whether the sentencing judge erred in assessing the utilitarian value of the guilty plea and the discount to be applied for it
  • Whether the offence was correctly characterised as falling in the "middle range" of objective seriousness
  • Whether ss 21A and 54B of the Crimes (Sentencing Procedure) Act 1999 were correctly applied, particularly in relation to the standard non-parole period for the supply offence
  • Whether the sentences were manifestly excessive having regard to the mitigating factors present
  • Whether the offer of assistance to authorities warranted a separate discount under s 23 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had erred in the approach taken to the standard non-parole period under s 54B. Specifically, the sentencing judge treated the standard non-parole period as a reference point for a case with a guilty plea, when instead it represents the non-parole period for a mid-range offence contested at trial. This error compounded the inadequate weight given to the mitigating factors in the case.

The Court found that insufficient weight had been given to relevant mitigating factors, including the applicant's genuine remorse, his age, the fact that this would be his first time in prison, and the need for him to spend part of the sentence on protection. The plea of guilty was also a factor that properly warranted a meaningful discount, and the sentencing judge's treatment of it was not appropriate.

On the question of assistance to authorities, the Court accepted the sentencing judge's findings. The applicant's offer of information was of limited significance and reliability and, at most, was relevant as evidence of contrition rather than as a basis for a separate reduction under s 23.

The Court quashed both sentences and re-sentenced the applicant. The revised sentence for Count 1 was a non-parole period of 7 years within a total term of 9 years and 4 months. The sentence for Count 2 was reduced to a fixed term of 2 years, which was wholly absorbed by the sentence for Count 1.

Orders Made

  • Leave to appeal granted
  • Sentence for Count 2 quashed; substituted with a fixed term of 2 years' imprisonment, commencing 4 February 2003
  • Sentence for Count 1 quashed; substituted with a non-parole period of 7 years and a total term of 9 years and 4 months, commencing 4 February 2003, with the non-parole period expiring 3 February 2010
  • 3 February 2010 specified as the earliest date of eligibility for parole
  • No non-parole period set for Count 2, as it is wholly absorbed into the Count 1 sentence
  • No special circumstances found under s 44(2) justifying departure from the statutory ratio

Key Takeaways

  • Under s 54B of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period represents the benchmark for a mid-range offence determined after a contested trial; it is an error to treat it as the starting point in cases where a guilty plea has been entered.

  • A guilty plea's utilitarian value must be given genuine weight in the sentencing exercise; conflating the plea discount with the standard non-parole period analysis produces a compounded error that can render a sentence manifestly excessive.

  • Where an offender offers information to authorities, the significance, reliability, completeness, and timeliness of that assistance are all relevant under s 23; an offer that does not meet those thresholds may nonetheless support a finding of remorse rather than warrant a distinct sentencing reduction.

  • Mitigating factors such as genuine remorse, age, a first term of imprisonment, and the prospect of protection custody obligations are matters that must be accorded proper weight when departing downward from the standard non-parole period, and the sentencing court must specify its reasons for doing so under s 54B(4).

  • In declining to find special circumstances under s 44(2), the Court of Criminal Appeal confirmed that a departure from the standard non-parole-to-total-sentence ratio is not warranted where all relevant circumstances have already been factored into the non-parole period itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A, 22, 22A, 23, 44(2), 54B, 54C(1), 101A
- Crimes Act 1900 (NSW), various sections
- Children (Criminal Proceedings) Act 1987 (NSW)
- Sentencing Act 1989 (NSW) (repealed), s 5

Key Cases:
- Regina v Thomson and Houlton (2000) 49 NSWLR 383
- Wong v The Queen (2001) 207 CLR 584
- R v Markarian [2003] NSWCCA 8
- R v Sharma (2002) 54 NSWLR 300
- R v Whyte (2002) 55 NSWLR 252
- R v Jurisic (1998) 45 NSWLR 209
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Hoare v The Queen (1989) 167 CLR 348
- AB v The Queen (1999) 198 CLR 111
- R v Mostyn [2004] NSWCCA 97
- R v Durocher-Yvon [2003] NSWCCA 299