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Court of Criminal Appeal 17 August 2004

R v Emanuel

[2004] NSWCCA 267

Drugs
CROWN APPEAL ON MANIFEST INADEQUACY

Citation: R v Emanuel [2004] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 17 August 2004
Judge(s): Dowd J; Bell J; Smart AJ

Background

The respondent, a 35-year-old UK national, pleaded guilty in the Sydney District Court to supply of a large commercial quantity of methylamphetamine, possession of goods in custody ($400,000 cash), and possession of cannabis. He had arrived in Sydney in mid-2002 and was arrested on 2 July 2002, after which he remained in continuous custody.

The drug offence related to the collection of proceeds from the sale of approximately 8kg of methylamphetamine in New South Wales, and the monitoring of a further 18.25kg held in Western Australia. The methylamphetamine ranged in purity from 41.4% to 50.4%. The respondent had liaised with principals in the United Kingdom regarding the operation, acting as a local coordinator. The 8kg quantity alone represented eight times the threshold amount for the offence, which carries a maximum penalty of life imprisonment.

The District Court sentenced the respondent to four years and four months imprisonment with a non-parole period of two years and eight months on the supply charge. The Crown appealed on the basis that the sentence was manifestly inadequate.

  • Whether the sentence imposed for the supply of a large commercial quantity of methylamphetamine was manifestly inadequate so as to establish error warranting appellate intervention.
  • Whether the sentencing judge made discrete factual errors that contributed to the inadequacy of the sentence.
  • What sentence was appropriate upon re-sentencing, having regard to the restraint applied in Crown appeals.

Decision

The Court of Criminal Appeal found the original sentence manifestly inadequate. The sentencing judge had set a starting point of five and a half years and applied a 20% discount for the early guilty plea, producing the head sentence of four years and four months. The Court identified several errors in the sentencing remarks, including a finding that the respondent had lost the benefit of full-time steady employment, when the uncontested evidence was that he had been a full-time professional gambler for some years before his arrest.

The Court also found that the sentencing judge had given insufficient weight to general and specific deterrence, which the Court described as the most important consideration in drug supply sentencing. Subjective factors such as absence of prior criminal history and good character, while relevant, carry reduced significance in serious drug matters. The Court further noted an apparent reliance on psychological evidence suggesting the respondent became aware only upon arriving in Sydney that he was dealing with drug money, while simultaneously finding he had continued the operation regardless.

On re-sentencing, the Court adopted a starting point of nine years, applied the same 20% discount for the early plea, and arrived at a sentence of seven years and three months. A non-parole period of four years and nine months was set, providing a parole period of two years and six months to support the respondent's rehabilitation from gambling. The Court acknowledged these figures remained lenient, reflecting the restraint ordinarily exercised in Crown appeals.

The sentences for the goods in custody and cannabis possession charges were not disturbed. Those sentences had, in any event, already been served.

Orders Made

  • Crown appeals against the sentences for goods in custody (6 months) and possession of cannabis (rising of the Court) dismissed.
  • Crown appeal against the supply large commercial quantity sentence allowed; sentence of 4 years 4 months (non-parole period 2 years 8 months) quashed.
  • The respondent re-sentenced to 7 years 3 months imprisonment commencing 2 July 2002, with a non-parole period of 4 years 9 months expiring 1 April 2007, on which date he became eligible for release on parole.

Key Takeaways

  • General deterrence is the most important sentencing consideration for serious drug supply offences, and a sentence that fails to reflect this principle is susceptible to being set aside on Crown appeal as manifestly inadequate.
  • A large commercial quantity of methylamphetamine, even at the lower end of the range charged, represents offending of high objective gravity. The Court noted that 8kg was eight times the threshold quantity for an offence carrying a maximum of life imprisonment.
  • Positive subjective factors, including good character, the absence of prior convictions, and evidence of strong community support, carry reduced weight in sentencing for serious drug trafficking offences.
  • Factual errors in sentencing remarks, such as misstating the respondent's employment history in a way contrary to uncontested evidence, can contribute to a finding that the sentencing discretion was not properly exercised.
  • When re-sentencing following a successful Crown appeal, the Court of Criminal Appeal applies restraint and will not necessarily impose what it considers the appropriate sentence had it been sentencing at first instance.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 168(3)

Cases:
- Griffiths v R (1997) 137 CLR 293
- R v Baker (2000) NSWCCA 85
- R v Clarke (2001) NSWCCA 223
- Regina v Laurentio and Becheru (1992) 63 A Crim R 402
- R v Leroy (1984) 13 A Crim R 469
- R v MacDonnell [2002] NSWCCA 34
- R v Parker (2002) 132 A Crim R 413
- Regina v Quang Vinh Dang, NSWCCA, 7 November 1997
- R v Schofield [2003] NSWCCA 3
- R v Shankley (2003) NSWCCA 253