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42
Court of Criminal Appeal 5 March 2002

R v MacDonnell

[2002] NSWCCA 34

Also reported as (2002) 128 A Crim R 44
Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE APPEAL ALLOWED RESPONDENT RESENTENCED.

Citation: R v MacDonnell [2002] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 5 March 2002
Judges: Wood CJ at CL, Sully J, Dowd J

Background

Between 1997 and 1998, police conducted a covert investigation into the drug activities of the respondent and his nephew. The investigation resulted in the seizure of large quantities of heroin, methylamphetamine, and cocaine. The trial judge found the respondent was a substantial dealer, while his nephew played only a limited role.

The respondent initially pleaded not guilty to all charges. He changed his plea during the trial, after a jury had been empanelled and after the trial judge ruled on the admissibility of certain evidence adverse to him. He pleaded guilty to supply of not less than a large commercial quantity of heroin, supply of not less than a large commercial quantity of methylamphetamine, and supply of cocaine.

At sentencing in August 2001, the District Court imposed an effective head sentence of 9 years with a non-parole period of 4 years 6 months, with all sentences running concurrently. The sentences incorporated a 25% discount for the guilty pleas. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the overall sentence was manifestly inadequate given the respondent's significant role in the drug supply chain
  • Whether a 25% guilty plea discount was properly available for a late plea entered after three years, mid-trial, following an adverse evidentiary ruling
  • Whether the discount for the respondent's assistance to authorities was correctly applied solely to the non-parole period
  • Whether it was appropriate to order all sentences to be served concurrently, rather than imposing some degree of accumulation

Decision

The Court of Criminal Appeal allowed the appeal on all four grounds, finding that the sentences imposed were so manifestly lenient as to require appellate correction.

On manifest inadequacy, the Court confirmed that the offender's role in the supply chain is more important than the quantity of drugs alone, though quantity still informs the applicable penalty range under the Drug Misuse and Trafficking Act 1985. Given the respondent's substantial role, the need for sentence consistency with comparable cases, and the sheer volume and duration of the drug supply, the Court found there had been a misapplication of sentencing principle.

On the guilty plea discount, the Court held that a 25% reduction was not justified. The pleas came more than three years after arrest, after a jury had been empanelled, and in direct response to an adverse evidentiary ruling. These circumstances supported only a modest discount of around 10% for willingness to facilitate the course of justice. The Court drew on Cameron v The Queen and R v Thomson and Houlton in reaching this conclusion.

On the assistance discount and concurrency, the Court found two further errors. Applying the discount for assistance entirely to the non-parole period, rather than across the sentence as a whole, distorted the sentencing exercise. Further, ordering all sentences to run concurrently failed to reflect the extended duration, frequency, and volume of the offending. The Court held some degree of accumulation was required. A combined discount of approximately 40% for both the guilty pleas and assistance was considered appropriate.

Orders Made

  • Appeal allowed
  • Sentences for counts 1 (heroin) and 3 (cocaine) quashed
  • Respondent resentenced to 8 years imprisonment with a 5-year non-parole period for supply of a large commercial quantity of methylamphetamine
  • Respondent resentenced to 9 years imprisonment with a 5-year non-parole period for supply of a large commercial quantity of heroin, to be served partly concurrently and partly cumulatively on the methylamphetamine sentence
  • Total effective sentence: 11 years imprisonment with a non-parole period of 7 years
  • Special circumstances found, varying the standard non-parole proportion under s 44(2) of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • When sentencing for large-scale drug supply, the offender's role in the supply chain carries greater weight than drug quantity alone, though quantity remains relevant to the applicable penalty range under NSW law.
  • A late guilty plea entered mid-trial, over three years after arrest, and following an adverse evidentiary ruling warrants only a modest discount. The Court of Criminal Appeal endorsed a discount in the order of 10% in those circumstances, not the 25% applied below.
  • Applying an assistance discount solely to the non-parole period, rather than across the overall sentence, constitutes a sentencing error capable of distorting the entire exercise, particularly when combined with a separate plea discount.
  • Concurrent sentences are not automatically appropriate for multiple drug supply offences. Where the offending spans an extended period and involves significant volume and frequency, partial accumulation is required to reflect the full criminality involved.
  • The correct sequencing for multiple-offence sentencing requires a court to fix the appropriate sentence for each offence first, and only then address questions of accumulation, concurrency, and totality. Reversing that order, as occurred here, was itself a procedural error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999, ss 23, 44(2)
- Criminal Appeal Act 1912, s 5D
- Drug Misuse and Trafficking Act 1985, ss 32, 33(3A)

Key Cases:
- Cameron v The Queen [2002] HCA 6
- Wong and Leung v The Queen (2001) 76 ALJR 79
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Pearce v The Queen (1998) 194 CLR 610
- AB v The Queen (1999) 198 CLR 111
- Postiglione v The Queen (1997) 189 CLR 295
- R v Cartwright (1989) 17 NSWLR 243
- R v Darwiche [1999] NSWCCA 297
- R v Glasby [2000] NSWCCA 83
- Everett v The Queen (1994) 181 CLR 295
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 74 ALJR 1538
- R v Lowe (1984) 154 CLR 606
- R v Hamzy (1994) 74 A Crim R 341
- R v Cassar [1999] NSWCCA 152
- R v Hameed [2001] NSWCCA 287
- R v Ceissman [2001] NSWCCA 73
- R v Laurentio and Becheru (1992) 63 A Crim R 402