Citation: Regina v Morres George [2002] NSWCCA 419
Court: NSW Court of Criminal Appeal
Date: 11 October 2002
Judge(s): Sperling J, Buddin J
Background
The applicant, a 63-year-old man in poor health, sought leave to appeal against a sentence of four years' imprisonment with a non-parole period of three years imposed in the District Court. He had pleaded guilty to knowingly taking part in the supply of not less than a commercial quantity of methylamphetamine, an offence carrying a maximum penalty of 20 years' imprisonment and/or a substantial fine under the Drug Misuse and Trafficking Act 1985. Two further offences of the same kind were placed on a Form 1 document (a procedural mechanism allowing additional offences to be taken into account at sentencing without additional charges being proven).
The offending occurred in 1999. The applicant and his de facto partner acted as middlemen, introducing a Western Australian buyer to Sydney-based drug suppliers, providing a pickup point for drugs, and facilitating the movement of large quantities of methylamphetamine between source and couriers. Cash was transported from Perth to Sydney, and drugs were then dispatched back to Perth. The applicant was paid approximately $3,000 for his role in one of those transactions.
The sentencing judge found that the applicant's involvement was greater than that of a mere courier but that the broader scheme was orchestrated by others. The applicant had a prior conviction from 1986 for conspiracy to bribe a public official, though his record was otherwise minor and he had no convictions between 1991 and the commission of these offences.
Legal Issues
- Whether the sentencing judge failed to give adequate weight to the applicant's significant medical conditions in arriving at the sentence
- Whether additional medical evidence placed before the Court of Criminal Appeal provided a basis for intervention in the sentence
Decision
The central ground of appeal was that the sentencing judge had given insufficient weight to the applicant's serious health problems, which included ischaemic heart disease, severe arterial blockages in his legs, and progressive prostate disease. The Court acknowledged that a failure to give any weight to a material sentencing factor is a demonstrable error, but noted that a contention of insufficient weight involves a more complex challenge: it requires showing that an error occurred in the process of balancing multiple factors, not merely that different weight could have been assigned.
The Court was not persuaded that the sentencing judge erred. His Honour had expressly addressed the applicant's medical condition in his remarks on sentence and the sentence ultimately imposed reflected a meaningful reduction attributable to ill-health. The Court found the sentence was appropriately ameliorated given all the competing factors, including the plea of guilty, the prior serious conviction, and the nature and scale of the drug offending.
Fresh medical evidence was placed before the Court of Criminal Appeal showing the applicant's conditions continued but had not deteriorated since he entered custody. The Court noted that prison medical authorities were actively managing his needs and facilitating access to outside facilities. Even accepting that this further material was admissible, the Court found it disclosed no material change in the applicant's condition sufficient to warrant intervention in the sentence. The Court declined to finally determine whether the additional material was, in fact, admissible.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A contention that a sentencing judge gave insufficient weight to a material factor is a significantly harder ground of appeal to establish than a contention that the factor was entirely ignored.
- In dismissing the appeal, the Court confirmed that an ameliorated sentence, coupled with a sentencing judge's express acknowledgment of poor health, can be sufficient evidence that medical condition was appropriately weighed.
- Fresh evidence of ongoing medical conditions placed before an appellate court will not, without more, justify interference with a sentence where there has been no material deterioration in the offender's health since the original sentence was imposed.
- The Court of Criminal Appeal left open the question of whether post-sentence medical evidence is admissible on a sentence appeal, finding it unnecessary to resolve the point given no change in the applicant's overall condition was established.
- Acting as a middleman in a commercial drug supply operation, even where the broader scheme is orchestrated by others, represents a level of culpability above that of a courier and will be sentenced accordingly.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases
- R v Burrell [2000] NSWCCA 262
- R v Conway (2001) 121 A Crim R 177