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Court of Criminal Appeal 12 April 2005

Le v R

[2005] NSWCCA 162

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY STRENGTH OF PROSECUTION CASE UTILITARIAN VALUE OF PLEA WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: [2005] NSWCCA 162
Court: New South Wales Court of Criminal Appeal
Date: 12 April 2005
Judge(s): Wood CJ at CL, Grove J, Hoeben J

Background

The appellant pleaded guilty in the Local Court to one count of supplying prohibited drugs on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985. The charges arose from undercover police operations in which the appellant sold heroin to an undercover officer on three occasions in August 2003. Each sale involved approximately five grams of heroin at around 35% purity, for $1,400 per transaction.

The offending was not limited to those three sales. Electronic and physical surveillance over thirteen days revealed the appellant received around 1,415 mobile phone calls, 85% of which related to drug activity. Police estimated approximately eighty customers dealt with him daily. At arrest, he was found with four ounces of heroin packaged in balloons, along with cash, packaging materials, and drug paraphernalia at his rented premises.

The District Court sentenced the appellant to four years and eight months imprisonment, with a non-parole period of two years and eight months. A 15% discount was applied for the early guilty plea, remorse, and facilitation of justice. Special circumstances were found, producing a longer-than-usual parole period relative to the head sentence.

  • Whether the sentencing judge erred by taking the strength of the Crown case into account when assessing the utilitarian value of the guilty plea, contrary to established authority
  • Whether a discount of only 15% was adequate given the timing and circumstances of the plea
  • Whether the overall sentence was manifestly excessive having regard to the appellant's objective criminality and favourable subjective circumstances

Decision

On the first issue, the Court of Criminal Appeal noted that the sentencing judge's comment about the strength of the Crown case appeared in submissions exchanges, not in the formal remarks on sentence. The Court reaffirmed its consistent position that observations made during submissions do not constitute part of the reasons for sentence, and it is not safe to treat such comments as the judge's final or considered view. On that basis, no appellable error was established on this ground.

On the question of the 15% discount, the Court acknowledged that where a plea is entered in the Local Court, a discount pitched in the lower half of the accepted range would ordinarily require clear and cogent reasons. However, the Court emphasised that the mere fact a discount sits in the lower range does not automatically warrant appellate interference. The operative question under s 6(3) of the Criminal Appeal Act 1912 is whether some other sentence was warranted in law and should have been passed.

On manifest excess, the Court rejected the submission that the sentence was too high. It characterised the objective criminality as very considerable: the drug was heroin, the quantities were not negligible, and the offending was planned, ongoing, and commercially motivated rather than driven solely by the appellant's own drug habit. The maximum penalty of 20 years under the legislation signalled the legislature's serious view of the offence, and general deterrence was a significant sentencing consideration.

The Court also declined to treat statistical ranges from the Judicial Commission or comparisons with individual cases as a reliable basis for appellate review, noting that statistics mask the wide variation in circumstances across the cases they represent. Finding no lesser sentence was warranted in law, the Court dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Exchanges between the bench and counsel during sentencing submissions do not form part of the formal reasons for sentence, and the Court of Criminal Appeal will not treat passing observations made at that stage as the judge's settled basis for the sentence imposed.
  • A guilty plea discount in the lower range of the accepted bracket does not automatically attract appellate intervention; the court must be satisfied that a different sentence was actually warranted in law before interfering.
  • Under s 6(3) of the Criminal Appeal Act 1912, the appellate test is whether some sentence other than that imposed was warranted in law and should have been passed, not simply whether the sentencing judge could have been more generous.
  • Judicial Commission statistics and comparisons with individual cases provide limited assistance on sentence appeals, given the wide variation in objective and subjective circumstances underlying the data.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that ongoing, commercially motivated heroin supply attracts significant weight on general deterrence, even where an offender has no prior record and good rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- House v The Queen (1936) 55 CLR 499
- R v Thomson & Houlton (2000) 45 NSWLR 383
- R v Smiroldo (2000) 112 A Crim R 47
- R v Khaled [2001] NSWCCA 169
- R v Radford [2002] NSWCCA 122
- R v Whyte (2002) 55 NSWLR 252
- R v Kain [2004] NSWCCA 143
- R v A [2004] NSWCCA 292
- R v Johnstone [2004] NSWCCA 307
- R v Sutton [2004] NSWCCA 225
- R v Brett [2004] NSWCCA 372
- R v Oliver [2005] NSWCCA 6
- R v Pham [2005] NSWCCA 94
- R v Morgan (1993) 70 A Crim R 368