Parente v R [2017] NSWCCA 284
Parente v R [2017] NSWCCA 284 · Read the judgment on AustLII
Catchwords: Sentencing – drug offences – Clark ‘principle’ compelling fulltime custody overturned
This full-bench decision of the Court of Criminal Appeal (‘CCA’), which follows a recent line of cases previously reported in these pages, finally overturns the so-called ‘principle’ or ‘rule’ which meant that involvement in trafficking of drugs to a substantial degree must lead to fulltime custody unless there were exceptional circumstances. When sentencing for drug matters, courts must focus on the principles of sentencing applicable to all matters, rather than starting with a prima facie sentence of imprisonment.
Unhappily, a criminal lawyer has changed the law in a way he’d probably prefer he hadn’t: the appellant was a solicitor practising in criminal law who was, but for the facts of this case, described by the sentencing judge of being of otherwise excellent character. He came to police attention late on a Friday night when he turned his car suddenly in front of them. His demeanour was suspicious, and police searched the car notwithstanding (or perhaps because) he told them he was a criminal lawyer who had just been with a client – at midnight. In the car they found $3,000 in cash and 100 tablets (16.8g) of what was basically ecstasy. They subsequently searched his home and found about 1.4kg of gamma butyrolactone (more than the commercial quantity); about 340g of 1,4-butanediol in various bottles, vials and containers around the house; 17 tablets of ecstasy in the oven; and 2.92g of methylamphetamine; along with some more cash and various paraphernalia of supply.
Notwithstanding a (predictably) compelling subjective case including information about his personal descent into drug addiction, and a finding that the most serious offence (the deemed supply of the 1.4kg of gamma butyrolactone) was at the ‘the lowest end of objective seriousness’, the sentencing judge sentenced the offender to 4 years with a non-parole period of 2 years. The offender appealed, amongst other bases adding a ground which challenged the sentencing judge’s (at that time orthodox) approach to the so-called ‘Clark principle’.
Long-time sufferers of these pages will be aware of the tension about the Clark principle, including the recent decision of Robertson [2017] NSWCCA 205, which was reported in the October 2017 edition of LSJ. In broad summary, the unreported decision of R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990 included a statement by Hunt J (with the concurrence of Sharpe J, but the dissent of Enderby J) that when sentencing for drug matters ‘… trafficking alone in any substantial degree should normally lead to a custodial sentence’ in the absence of exceptional circumstances. That was so often endorsed that it became known as the Clark ‘principle’ or ‘rule’. The decision of Clark itself, its background, and the mostly-uniform run of cases which followed it are set out in Parente at [56]-[81]. But then the court uses the telling subheadings of ‘Times have changed’ (at [82]) and ‘Doubts about the Clark "principle"’ (at [90]), which give a flavour of what follows.
Again, briefly, Robertson raised significant doubt that the Clark ‘principle’ was ever good law. Simpson JA set out that the ‘principle’ or ‘rule’ finds no legislative basis, and represents a constraint on judicial discretion which is inconsistent with the requirement to consider all other options before imposing fulltime custody. But Robertson was only a three judge decision, and other than its relative recency, there was no compelling reason to prefer it over the almost three decades of decisions which preceded it. In other words: it raised a doubt about the validity of the Clark principle which needed to be resolved.
Robertson was handed down after the appeal had been lodged in Parente, so after he had an appeal on foot, the appellant added a ground challenging Clark. The Chief Justice directed the five judge bench to resolve the issue.
The court (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson and RA Hulme JJ) unanimously overturned the Clark principle, and at [105] explicitly endorsed the approach of Simpson JA from Robertson, and particularly the observation that the ‘principle’ in Clark is one that ‘crosses the boundary between identifying the “unifying principles” to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion’ (at [89] of Robertson).
In its place, from [107], the court in Parente sets out the new approach to sentencing in drug supply cases. Consistently with the legislation, that approach should pay particular regard to protecting the community from the offender – that is, general deterrence is particularly relevant in sentencing for drug matters (at [108] to [110]). Secondly, the court must have regard to the maximum penalty and any standard non-parole period (at [111]). Next, as observed by Simpson JA in Robertson, where an offence demonstrates drug dealing to a substantial degree, sentencing practices point to the general proposition that, in an ordinary case, a sentence of imprisonment will ordinarily be imposed (at [112]). Finally, having come to the conclusion that no other sentence other than one of imprisonment is appropriate, and having determined the length of that sentence, a sentencing court is still required, in accordance with authority, to consider the means by which that sentence of imprisonment will be served. That is, options (prior to the pending change of sentencing legislation) including Home Detention, Suspended Sentences, and Intensive Correction Orders [after the pending amendments, only Intensive Correction Orders will be available, although they might be functionally identical, in some cases, to Home Detention or a Suspended Sentence] (at [113] to [115]).
Although this must be seen as a very significant decision – particularly for less serious examples of supply offences – the practical effect should nevertheless not be overestimated. Case in point: in this particular case (which of course involved, amongst other things, one count of commercial supply), the court found that there was an error, but found that no lesser sentence was warranted. In fact, the entire discussion about the Clark debate was unnecessary to the outcome in this case – as the court pointed out, the sentence eventually imposed left the sentencing judge with no other option than fulltime custody, so the discussion about exceptional circumstances might be seen as redundant (see [117]).