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Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Boikov v R [2021] NSWCCA 147
Hearing dates: 18 June 2021
Decision date: 05 July 2021
Before: McCallum JA at [1];
Rothman J at [2];
Wright J at [54]
Decision: (1) Extension of time is granted to allow for the filing of the application for leave to appeal and the appeal;
(2) Leave to appeal granted;
(3) Appeal allowed;
(4) Sentence imposed in the District Court on David Boikov on 9 August 2019 is quashed and, in lieu thereof, the applicant is sentenced to a non-parole period, being a term of imprisonment of 4 years and 8 months and 27 days, commencing 28 March 2017 and concluding 24 December 2021; with a remainder of term of 3 years and 3 months and 3 days, concluding 27 March 2025. The applicant will be first eligible for parole on 24 December 2021.
Catchwords: CRIME – Appeal against sentence – failure to allow full utilitarian value for early plea of guilty – application of discount to aggregate sentence not indicative sentences – failure to specify non-parole period in indicative sentences that have a standard non-parole period – appeal allowed – applicant re-sentenced.
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 54B
Drug Misuse and Trafficking Act 1985 (NSW) s 25
Cases Cited: Aboud v The Queen [2021] NSWCCA 77;
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2;
Davis v R [2015] NSWCCA 90;
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22;
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49;
House v The King (1936) 55 CLR 499; [1936] HCA 40;
Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92;
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37;
R v Kilic (2016) 259 CLR 256; [2016] HCA;
See v R [2020] NSWCCA 272;
Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107;
Tuesley v R [2021] NSWCCA 58;
Veen (No 2) (1988)164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: David Boikov (Applicant)
Regina (Respondent)
Representation: Counsel:
H White (Applicant)
K Jeffreys (Respondent)
Solicitors:
T & A Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/94849
Decision under appeal Court or tribunal: District Court
Jurisdiction: Crime
Date of Decision: 09 August 2019
Before: Madgwick QC ADCJ
File Number(s): 2017/94849
Judgment
1. McCALLUM JA: I agree with Rothman J.
2. ROTHMAN J: The applicant, David Boikov, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by Acting Judge Madgwick QC (hereinafter "the sentencing judge") on 9 August 2019 in the District Court. The application for leave to appeal and the appeal were heard at the same time.
3. The sentencing judge imposed an aggregate sentence of 9 years' imprisonment, including a non-parole period of 5 years and 4 months. The offences and the indicative sentences in relation to that aggregate sentence were:
1. Supply prohibited drug, large commercial quantity (500 grams of methylamphetamine), committed on 25 February 2017 [sequence 4]: 4 years' imprisonment;
2. Supply prohibited drug, large commercial quantity (1 kilogram of methylamphetamine), committed on 28 February 2017 [sequence 3]: 6 years' imprisonment;
3. Supply prohibited drug, indictable quantity (176 grams of methylamphetamine), committed on 2 March 2017 [initially sequence 10, but substituted by fresh ex officio Indictment]: 2 years' imprisonment;
4. Supply prohibited drug, large commercial quantity (1.05 kilograms of methylamphetamine), committed on 3 March 2017 [sequence 5]: 7 years' imprisonment;
5. Supply prohibited drug, large commercial quantity (1,997 grams of methylamphetamine), committed on 28 March 2017 [sequence 6]: 8 years' imprisonment.
1. The offences of taking part in a supply of a large commercial quantity, being sequences 3, 4, 5 and 6, are offences pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and carry a maximum penalty of life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period of 15 years' imprisonment.
2. The offence of supplying a prohibited drug of not less than an indictable quantity is a contravention of s 25(1) of the Drug Misuse and Trafficking Act and carries a maximum penalty of 15 years' imprisonment and/or a fine of 2,000 penalty units. For that offence there is no prescribed standard non-parole period.
Grounds of Appeal and Consideration
1. The applicant raises three grounds of appeal, which are:
Ground 1: the sentencing judge erred by not allowing the full utilitarian discount of 25% for the pleas of guilty;
Ground 2: the sentencing judge erred by allowing the discount for the plea of guilty on the aggregate sentence rather than the indicative sentences;
Ground 3: the sentencing judge erred by failing to stipulate non-parole periods for the Table offences, contrary to s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
1. The Crown concedes error. The Crown accepts that the Crimes (Sentencing Procedure) Act requires the sentencing judge to indicate a non-parole period for each of the offences that were the supply of a large commercial quantity of a prohibited drug and contrary to s 25(2) of the Drug Misuse and Trafficking Act. Nevertheless, such an error, it is submitted, does not affect the sentence imposed and is not an error which, of itself, would warrant the intervention of the Court. [1]
2. Further, the Crown accepts that the applicant should have been allowed and, if the Court were minded to re-sentence, should be allowed, a 25% discount for the utilitarian value of the plea of guilty. The Crown, in its submissions, refers to this ground appearing "to involve in part a question of procedural fairness".
3. In the exercise of the discretion of a sentencing judge to impose a sentence that is thought to be appropriate, it is unnecessary for the sentencing judge to raise the possibility of the sentencing outcome with the parties. Failure to raise a possible outcome, either in whole or in part, does not give rise to a denial of procedural fairness.
4. Fundamentally, it is for the Crown, and only the Crown, to determine, in the exercise of its discretion, the charge to be preferred on indictment. Secondly, it is for the defendant, and only the defendant, to determine the plea to be entered in relation to each such charge. Thirdly, it is for the Court, and only the Court, in the exercise of its judicial discretion, to determine the sentence to be imposed. [2]
5. As long as each of the parties has a reasonable opportunity to prepare and to present its case, the failure to indicate, during proceedings on sentence, the basis upon which a sentence will be imposed, does not, without more, create a breach of the rules of procedural fairness.
6. It is not for the parties, either the Crown or an offender, to determine the bounds of the range by which the Court is constrained in determining the sentence to be imposed. Nor is it for the parties, between themselves or otherwise, to determine the range available to a Court in sentencing an offender. [3]
7. In the current proceedings, the offender, or his representative, should have been aware that a discount of less than 25% was contemplated. In the course of the proceedings on sentence, the following exchange occurred:
"HIS HONOUR: Then in relation to Boikov, there's more involvement and without [sic] the same level and an earlier plea of guilty and youth and no previous criminal history.
BARLOW: Yes. He might fall somewhere --
HIS HONOUR: Around the pain of his father dying while he was in custody. So if Lou [sic] was ten years and ten months, he might be twelve and a half less an extra 20% or so for the early plea and youth and being in gaol by reason of the death of the father. So that would bring him back to ten years.
BARLOW: Between Li and Luo, the end result would be in between, yes. I don't see anything difficult about that.
HIS HONOUR: What do you say, Mr McMahon, about that?
MCMAHON: Can I start by saying of course that the issue of determining the role played by offenders can be a vexed one, especially in the context of cases such as this, where so much is not known about the precise nature of the way in which things were structured. The submission I make is this. I take your Honour's point about the relative role as between my client and his wife and Mr Luo but to some extent, it's really comparing apples and oranges." (Emphasis added.) [4]
1. As can be seen, his Honour raised with the parties that a discount of approximately 20% would be applied. In the course of his remarks on sentence, the learned sentencing judge, after noting at the outset that the applicant pleaded guilty at the earliest possible time, [5] remarked, in his ex tempore reasons, that "justice would be done if I fixed on an aggregate sentence of 11 years … but allowed him a further 15% by reason of the timely and early plea of guilty that he made". [6] In fact, the discount applied is calculated at 18% for the early plea of guilty.
2. This sentence was imposed on 9 August 2019 and the proceedings commenced well before that. Consequently, the provisions of Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act do not apply and the sentencing judge had a discretion as to the amount of discount that should be, and should have been, applied.
3. As stated, the Crown accepts that a 25% discount should have been applied. The Crown also accepts that error has occurred in not indicating a non-parole period for those offences for which a standard non-parole period had been fixed, but submits that the error can have made no difference to the sentence and does not provide a basis for the Court intervening in the sentence. Thirdly, the Crown accepts that the discount for the early plea of guilty should have applied to each of the indicative sentences and not to the aggregate sentence only.
4. Notwithstanding the acceptance of error and the acceptance of a 25% discount as appropriate, were the Court to re-sentence, the Crown submits that, pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW), no "less severe" sentence is warranted in law and the appeal should be dismissed. The provisions of s 6(3) of the Criminal Appeal Act permit the Court to quash a sentence and pass another sentence in circumstances where "some other sentence … is warranted in law".
5. Where, as here, the Crown submits, on an appeal by an offender, that no "less severe" sentence is warranted, the Court is required, in order to accept such a submission, to determine for itself that no lesser sentence is warranted in law. The Court would be wrong so to conclude, unless the sentence imposed lies at the bottom of the available range for the offence and the offender. [7]
6. Where error has been disclosed in the imposition of a sentence, or the reasons for it, and such error is error for which the Court on appeal is entitled to intervene, pursuant to the well-known principles applicable to an appeal from an exercise of discretion, [8] then the Court is required independently to assess the sentence to be imposed. [9] If, having independently ascertained the appropriate sentence or range of sentences, the Court, on appeal, were of the view that the sentence imposed was at the bottom of the range, then the Court could not impose a less severe sentence.
7. There may be circumstances where the Court could come to that view, without fully assessing the sentence, but, if that were possible, this is not such a circumstance. Moreover, given the Crown's concession that the sentencing judge ought to have allowed a 25% discount for the plea of guilty, there is a necessary consequential concession that the application of an 18% discount did not bring the sentence to the bottom of the range available for these offences and this offender.
8. As a matter of principle and logic, the failure to specify a non-parole period for each indicative sentence can have made no difference to the sentence imposed. It is against the aggregate sentence imposed that the appeal must be taken.
9. Lastly, I deal with the failure of the sentencing judge to apply the discount, whatever may have been its level, to the indicative sentences. In Ibbotson, supra, I dealt, at length, with this issue. There can be no doubt that the Crimes (Sentencing Procedure) Act requires the application of the discount for a plea of guilty to each indicative sentence. I accept, without comment, the comments of Leeming JA in Ibbotson on this issue and the authorities to which his Honour referred. I also adhere to the comments that I made in Ibbotson.
10. Error has been disclosed. It is unlikely, but possible, that the error disadvantaged the offender. Nevertheless, for the reasons outlined by this Court in Ibbotson, it is important for a sentencing judge to reflect the discount in, and apply it to, the indicative sentences.
11. In these proceedings, and in the sentence imposed below, the discount applied in the same way to each of the sentences to be imposed. As a consequence, the impossible position to which the Court referred in Ibbotson of different discounts, or no discount, being applied to each sentence does not arise. Nevertheless, the Crimes (Sentencing Procedure) Act prescribes the process and it needs to be applied.
Re-sentencing
1. Neither party cavils with the findings of fact and statement of facts of the learned sentencing judge. I do not need to repeat them, but I rely upon them.
2. Relevantly, there were three offenders. One of them was sentenced by another judge of the District Court on 20 May 2019. He, Mr Luo, was sentenced to an aggregate sentence of 10 years and 10 months, with a non-parole period of 6 years and 6 months. Mr Luo acted as a broker, as distinct from the role of the applicant and his wife, Ms Li.
3. The role of Ms Li and the applicant was relevantly identical. Ms Li was sentenced by the learned sentencing judge at the same time as was the applicant.
4. Essentially, after purchasing a car for $50,000 in cash, the applicant and Ms Li used the car to supply the specified drugs, mostly to undercover operatives, following text message requests. It was not a sophisticated operation. Surveillance devices captured each of the supplies. Mr Luo supplied the applicant and Ms Li, but Mr Luo was the broker; and Ms Li and the applicant were the suppliers down the line.
5. In the case of Ms Li, the learned sentencing judge imposed a sentence, being an aggregate sentence, of 7 years' imprisonment, with a non-parole period of 4 years and 6 months. Ms Li received a discount of 25% in relation to the plea of guilty and an additional discount for assistance to the authorities. Ms Li's plea of guilty was entered at the same time as that of the applicant.
6. The starting point for the sentence imposed upon Ms Li was 12 years' imprisonment. Further, the offences for which Ms Li was sentenced included a firearms offence for which an indicative sentence of 5 years' imprisonment was imposed.
7. Nevertheless, Ms Li had strong subjective circumstances, as well. Further, his Honour found special circumstances for reasons that included, amongst others, that this was the first time Ms Li would be in prison.
8. None of the parties suggest that the findings of fact by the sentencing judge were inappropriate or unwarranted. Those findings of fact, in turn, rely upon agreed facts that were tendered in the proceedings and upon which the sentencing judge relied.
9. The applicant was 23 years of age at the time of the offence and the sentencing judge took into account his youth. I accept that factor, although scientific studies have suggested that the human brain matures, physically, at about the age of 23.
10. Nevertheless, in this case, a report from the clinical psychologist, Mr Borenstein, discloses that there are significant issues associated with the applicant's mental health and maturity. I take each of those into account and, in the case of the issues affecting the applicant's maturity and propensity to act impulsively, use that to confirm the approach of allowing some leniency on account of his relative youth.
11. Moreover, the aforesaid psychologist's report also indicated that there is a reasonable prospect of rehabilitation, given that the psychologist was unable to predict or determine that there were any underlying antisocial or criminogenic behaviours. The applicant also requires psychological assistance, probably while incarcerated, but necessarily when he returns to the community. The prospects of rehabilitation are confirmed by the additional material supplied to the Court on the basis that it would be relevant to the exercise of re-sentencing.
12. I confirm the findings of fact and the assessments of the learned sentencing judge. I apply a discount for the plea of guilty at the earliest opportunity of 25%.
13. The applicant submitted, on appeal, that the starting point of the sentencing judge was correct. The Court is required to take into account both the totality of the offences and the parity of the sentence imposed with the two co-offenders.
14. The obvious comparison, in terms of parity, is with the sentence imposed upon the applicant's wife, Ms Li. The sentence imposed upon Mr Luo is also relevant.
15. Parity requires that persons who are relevantly identical be treated equally and that those that are not identical are to be treated differently. The difference must reflect rationally the relevant differences between them. [10]
16. I bear in mind the guideposts of the maximum sentence, which for all of the offences involving the supply of a large commercial quantity, is life imprisonment and, for each of those offences, there is a standard non-parole period of 15 years' imprisonment. For the remaining offence of supply of an indictable quantity of methylamphetamine, the maximum penalty is 15 years' imprisonment, with no prescribed standard non-parole period.
17. Further, the applicant seeks for the Court to take into account two offences on a Form 1, each of which involves a supply of prohibited drugs and each of which is sought to be taken into account in relation to sequence 6, the supply of just under 2 kg of methylamphetamine. One of the offences on the Form 1 is for the supply of an indictable quantity of 82.9 grams of methylamphetamine and the other offence is for the supply of a commercial quantity of 278.12 grams of methylamphetamine.
18. The level at which an offence takes on the categorisation of the supply of a large commercial quantity of methylamphetamine is at 500 g. As a consequence, sequence 6 is almost four times the amount which satisfies that criterion. The other offences in that category are for the supply of a large commercial quantity but not of the quantity to which sequence 6 relates. The quantities have been indicated earlier in these reasons for judgment.
19. It is necessary to assess the objective seriousness of these offences within the conduct that is capable of making out the offence at that level. In fixing an appropriate sentence, the Court is required to assess the objective seriousness of the offence by examining the range of conduct that may generally be involved in the offence for which the sentence is to be imposed. It is necessary to assess the conduct of the offender to determine where, in the range of seriousness of conduct that may give rise to the offence at this level or at the level committed, this offence fits.
20. It is only in circumstances where the conduct involved, compared with other conduct that could give rise to such an offence in other circumstances, is so grave as to warrant the maximum penalty that the offence fits within that which is sometimes referred to as "the worst category of offence", warranting the maximum sentence imposed by the legislature. [11]
21. As was confirmed by the High Court in Kilic, supra, the maximum sentence is not confined to that for which it is impossible to conceive of an even worse instance of the offence. [12] The Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category that warrants the maximum sentence imposed by the legislature or lower down on the scale of seriousness, within a notional range between the lowest level of culpability and the highest level of culpability, all of them involving a serious offence.
22. In doing so, the Court seeks to achieve the purposes of sentencing which, in serious crimes, include punishment, general and specific deterrence, the protection of society, retribution and reform. [13]
23. Each of the purposes prescribed by s 3A of the Crimes (Sentencing Procedure) Act are guideposts, as is the maximum sentence and as is the standard non-parole period, where one is prescribed. The purposes of sentencing overlap and none of them can be considered in isolation. Sometimes, if not often, those guideposts point in different directions.
24. In circumstances such as the present, the task required of the sentencing judge below, and the task required of the Court on re-sentencing, is to seek to synthesise each of the objective and subjective circumstances of the offence and the offender respectively. That process can be a difficult one.
25. The offences in question are most serious, as can be gleaned from the maximum sentence that has been prescribed by the legislature. Nevertheless, in my view, a view with which the applicant and the Crown concur, the objective circumstances of these offences and offending, ascertained from the facts that were agreed and were repeated by the sentencing judge below and relatively uncontroversial, amounts to one course of conduct which, overall, is significantly below mid-range in seriousness.
26. Further, the subjective circumstances of the offender, to some of which reference has already been made, warrant some significant leniency and a finding of special circumstances.
27. Ultimately, the sentence that I propose to be imposed will be an aggregate sentence that is made up of the following indicative sentences and to which I will apply a 25% discount for the utilitarian value of the plea of guilty. The indicative sentences are:
1. Sequence 4: a starting point of 4 years' imprisonment and, after discount, an indicative sentence of 3 years' imprisonment, with a non-parole period of 2 years' imprisonment;
2. Sequence 3: a starting point of 6 years' imprisonment and, after discount, an indicative sentence of 4 years and 6 months' imprisonment, with a non-parole period of 3 years' imprisonment;
3. The ex officio indictment, previously sequence 10, being for the indictable quantity: a starting point of 2 years' imprisonment and, after discount, an indicative sentence of 18 months' imprisonment;
4. Sequence 5: a starting point of 6 years' imprisonment and, after discount, an indicative sentence of 4 years and 6 months' imprisonment, with a non-parole period of 3 years' imprisonment;
5. Sequence 6: including taking into account the two offences on the Form 1, a starting point of 10 years' imprisonment and, after discount, an indicative sentence of 7½ years' imprisonment, with a non-parole period of 4 years' imprisonment.
1. As already indicated, I consider that the offences are one prolonged course of conduct and require significant concurrency, which will be effected by the fixing of an aggregate sentence, based upon the already discounted indicative sentences, of 8 years' imprisonment, with a non-parole period, also including the discount to which reference has already been made, of imprisonment for 4 years and approximately 9 months, making a minor adjustment for the time of year.
2. I propose that the Court make the following orders:
1. Extension of time be granted to allow for the filing of the application for leave to appeal and the appeal;
2. Leave to appeal be granted;
3. Appeal be allowed;
4. Sentence imposed in the District Court on David Boikov on 9 August 2019 be quashed and, in lieu thereof, the applicant be sentenced to a non-parole period, being a term of imprisonment of 4 years and 8 months and 27 days, commencing 28 March 2017 and concluding 24 December 2021; with a remainder of term of 3 years and 3 months and 3 days, concluding 27 March 2025. The applicant will be first eligible for parole on 24 December 2021.
1. WRIGHT J: I agree with Rothman J.
**********
Endnotes
1. Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92 at [18], [161]; See v R [2020] NSWCCA 272 at [26]; Tuesley v R [2021] NSWCCA 58 at [60]-[68].
2. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22.
3. Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.
4. Proceedings on Sentence at p 26-37; Appeal Book at p 37-38.
5. Remarks on Sentence at p 1; Appeal Book at p 48.
6. Remarks on Sentence at p 9; Appeal Book at p 56.
7. Aboud v The Queen [2021] NSWCCA 77 at [2]-[4] (Simpson AJA); Davis v R [2015] NSWCCA 90; Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107.
8. House v The King (1936) 55 CLR 499; [1936] HCA 40.
9. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
10. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.
11. R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20] (Bell, Gageler, Keane, Nettle and Gordon JJ).
12. Veen (No 2) (1988)164 CLR 465 at 478; [1988] HCA 14.
13. Veen (No 2), supra; and Crimes (Sentencing Procedure) Act s 3A.
Amendments
13 July 2021 - [23]: "did not disadvantage" replaced with "disadvantaged"
13 July 2021 - [52]: the word "accumulation" replaced with "concurrency"
14 July 2021 - Typographical error
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Decision last updated: 14 July 2021