STEVENS v REGINA

[2008] NSWCCA 294

Court of Criminal Appeal (NSW)|2008-12-09|Before: McClellan CJ, Hulme J, Hidden J, As Wood J, Clellan CJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2008-12-09

Before

McClellan CJ, Hulme J, Hidden J, As Wood J, Clellan CJ

Source

Original judgment source is linked above.

Judgment (5 paragraphs)

[1]

The application 21 Counsel for the applicant, Ms Francis, pursued the application on two grounds. Firstly, she submitted that his Honour fell into error in the way in which he took into account the Form 1 matters when sentencing for the first count. Secondly, she argued that the proportion of the effective non-parole period to the aggregate sentence is unduly high. Form 1 matters 22 It appears that, in assessing the gravity of the offence of supplying methylamphetamine, his Honour had regard to the third charge on the Form 1, the offence of goods in custody involving $17,900 cash. His Honour said in his remarks: The facts indicate a series of supply over a period of time, and the facts supporting other charges are all significant indicia of drug activity by the offender. …As to the possession of the methylamphetamine…the $17,900 indicates that such an offence is at least in the middle of any scale of the criminality constructed for such an offence.

[2]

23 Later in his remarks, his Honour explained how he arrived at the undiscounted sentence of 4 years and 4 months for that first count, taking into account the Form 1 matters. He said: Conviction on trial would, in the view of this court, result in a sentence for supplying methylamphetamine of three years and four months imprisonment. Taking into account the matters on the form 1, I would increase that sentence to four years and four months.

[3]

24 Ms Francis accepted that it was open to his Honour to have regard to the Form 1 matters, particularly the possession of a large amount of money likely to be the proceeds of drug sales, in assessing the objective gravity of the offence of supplying methylamphetamine. She also accepted that it was open to his Honour to quantify the amount by which the sentence for that count had been increased because of the Form 1 matters. In the joint judgment in Markarian v The Queen (2005) 228 CLR 357 at [41]-[43], it was held that that approach is permissible. It is still not the practice to do so, consistently with the view earlier expressed by Spigelman CJ in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146 at [44]: The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it would rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account the Form 1 offences. 25 Ms Francis' complaint is that, in assessing the gravity of the first count, his Honour has effectively indulged in double counting. Not only did he have regard to the offence involving the money on the Form 1, he also increased the sentence otherwise appropriate by 12 months to take account of the Form 1 matters. While it may have been open to his Honour to have done one or other of those things, she argued, to do both was to fall into error. 26 In my view, this argument is not supported by a careful reading of his Honour's remarks. True it is that in the first of the passages quoted above his Honour appears to be saying that all the offences, that is, the two charges on the indictment and the Form 1 matters, together indicate "drug activity" by the applicant. However, from the second quoted passage it is clear enough that his Honour had regard only to the goods in custody involving the money in assessing the objective gravity of the offence of supplying methylamphetamine. When it came to determining the sentence for that offence it was necessary to have regard to all of the matters on the Form 1, comprising not only other drug offences but also the goods in custody relating to the DVD player and other items and the receiving of the stolen motor vehicle. The totality of those offences called for a significant increase of the sentence appropriate for the first count standing alone, and it cannot be said that an increase of 12 months was outside the bounds of the proper exercise of discretion. 27 This ground is not made out.