R v Hughes

This recent decision considers a number of matters which will be of interest to criminal practitioners. The applicant had been sentenced and ordered to serve 80% of her sentence pursuant to s 5(2) of the Drugs Misuse Act 1986, which was repealed shortly after her sentence. She appealed on the basis that that circumstance made her sentence manifestly excessive and that it had the effect of causing a disparity between her sentence and that of another participant in the offence who was sentenced after the repeal. She also sought to argue that if she were to be re-sentenced, the original provision should not apply to that exercise. The Court of Appeal refused her application for leave to appeal, finding against her on each point.

Morrison and Philippides JJA and Brown J

22 August 2017

The applicant in this matter was sentenced to imprisonment after pleading guilty to a 25 count indictment. The head sentence was four years and she was ordered to serve 80 per cent of her sentence pursuant to s 5(2) of the Drugs Misuse Act 1986, which was subsequently repealed shortly after her sentence.

She sought to appeal on the grounds that the sentence was manifestly excessive and attacked the period of imprisonment to be served.  She queried whether, in the event the application were allowed, she would be subject to s 5(2) of the Drugs Misuse Act as it stood at the time of the original sentence.

Albeit not suggesting any specific error on the part of the sentencing judge, the applicant argued the appeal on the following “key points”:

1. she had been sentenced merely one month prior to the repeal of s 5(2) of the Drugs Misuse Act;
2. she had made efforts to rehabilitate;
3. whilst the trafficking generated a profit, that income was used to support her own drug addiction; and
4. other participants in the same operation had received a lesser sentence, and one offender was sentenced after s 5(2) was repealed. [5].

In considering the matter, the court reviewed the circumstances of the offending and the applicant’s antecedents. [10]–[16]. It was apparent that the sentencing judge had paid ample regard to those matters in considering the appropriate sentence to be imposed, together with the fact that she had made timely guilty pleas and cooperated with authorities. [17].

He ultimately concluded on balance that in view of her “scant regard for court orders in the past”, [18] a suspended sentence would be ineffective and a period of actual imprisonment was warranted in order to reflect the criminality of the offending. [18].

Submissions on appeal: parity

The applicant argued that the disparity between her sentence and that of another participant in the same operation who was sentenced to a lesser penalty, after the removal of the 80 per cent rule from the Drugs Misuse Act 1986, indicated that her sentence was manifestly excessive. [21]. In response the Crown contended that issues of parity were inapplicable because the applicant and the other participant were not co-offenders. In that circumstance, the Crown argued that the difference between the sentences did not reveal any justifiable grievance nor unfairness which would warrant the court’s intervention. [22].

In the court’s view, the issue of parity was able to be settled by reference to R v Leathers [2014] QCA 327. In that decision, the court refused to extend the principle of parity to individual offenders participating in drug trafficking as part of a broader scheme, the court noting that to do so would result in irregularities in complex trafficking matters. [25], [26]. Furthermore, it was relevantly held in R v Crossley (1999) 106 A Crim R 80, [87] that where a law prescribes that only one of two co-offenders is caught by the 80% requirement, that circumstance is deemed irrelevant in considering parity between the two. [28].

In circumstances where there was no error evident in the sentencing remarks; [32]–[35] the court was unprepared to agree that they were other than “reasonable and [with] a proper foundation”. [36].

Comparable cases

In its review of comparable authority, at the outset the court commented that a period of imprisonment is usual in cases where a prolonged period of trafficking is concerned, and a suspended sentence is atypical. [37]. In R v Borowicz [2016] QCA 211 the court observed that the effect of s 5(2) of the Drugs Misuse Act is a relevant consideration for deciding whether to opt for a suspended sentence, and further, where s 5(2) would apply to a sentence of modest duration, “the opportunity for parole conditions to achieve beneficial effect might be significantly truncated”. (at [44]).

Bearing in mind that the head sentence fell within the applicable sentencing range for like offences and the authorities indicated a range of three to eight years’ imprisonment, [43] the court was not convinced that there had been any misapplication of the sentencing discretion nor that any suspension was appropriate. [44].

Application of s 5(2) of the Drugs Misuse Act

It was readily apparent that, given the provision was still in force at the time of sentencing, its application was obligatory. [45], [47]. In terms of whether the Court, if the application succeeded, would be obliged to sentence the applicant in accordance with the law as it stood at the time of the original sentence or the current law, the approach taken was that the new sentence would need to conform with the former. [52].

In the result the application for leave to appeal was refused. [54].

A de Jersey