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Court of Criminal Appeal 27 October 2005

REGINA v. O'NEILL

[2005] NSWCCA 353

Drugs
CRIMINAL LAW SENTENCE DEEMED SUPPLY OF COCAINE AND CANNABIS UTILITARIAN VALUE OF THE PLEA STRENGTH OF THE CROWN CASE ERROR AS TO THE WRONG MAXIMUM PENALTY.

Citation: Regina v O'Neill [2005] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 27 October 2005
Judge(s): Hulme J, Hidden J, Hall J

Background

The appellant was stopped by police on the Pacific Highway while driving a hire car at 135 km/h. Officers found approximately $65,000 in cash, 5.21 grams of cocaine, and 2,240 grams of cannabis in the vehicle. Mobile phone messages and the cash were found to be consistent with drug dealing, and the sentencing judge concluded the appellant was operating as an entrepreneur in a commercial drug business.

The appellant pleaded guilty at Tweed Heads Local Court to deemed supply of cocaine, deemed supply of cannabis, and dishonestly obtaining a motor vehicle by deception. Judge Ducker of the District Court sentenced him in August 2003, allowing a 15 percent discount for the cannabis and vehicle offences and 20 percent for the cocaine offence.

The application for leave to appeal was filed out of time because an error in the commitment warrant had incorrectly recorded the expiry date of the non-parole period, leading the appellant to misunderstand when his sentence would end. The extension of time was sought once the error was detected.

  • Whether the sentencing judge erred by taking the strength of the Crown case into account when assessing the utilitarian value of the guilty plea, thereby reducing the discount below what the appellant argued it should have been
  • Whether the sentencing judge's erroneous reference to a 15-year maximum penalty for the cannabis supply offence (when the correct maximum was 10 years) constituted an error requiring resentencing

Decision

On the first ground, Hall J accepted that the sentencing judge had, to some degree, differentiated between the plea discounts based on the strength of the Crown case in relation to the cannabis charge. That approach was an error: the strength of the prosecution case is not a proper basis for reducing the utilitarian value of a guilty plea, even though it may be relevant to an assessment of remorse. The Court found the applicant's submission on this point to be well-founded.

Despite identifying this error, the Court declined to intervene. The determination of the appropriate discount within the accepted range of 15 to 25 percent involves a discretionary evaluation, and a 25 percent discount was not mandatory. The Court was not satisfied, applying section 6(3) of the Criminal Appeal Act 1912, that a less severe sentence was warranted in law or should have been passed.

On the additional ground concerning the wrong maximum penalty, Hall J acknowledged that the sentencing judge had referred to a 15-year maximum for both cocaine and cannabis supply offences under section 25(1) of the Drug Misuse and Trafficking Act 1985, when the correct maximum for the cannabis offence was 10 years. While a similar error had prompted intervention in an earlier case, Hall J was not persuaded that the error in this case required the Court to substitute a lesser sentence, having regard to the sentences actually imposed.

Hulme J added that the appellant had dealt in two separate drugs as part of a commercial enterprise. Had there been any reduction to the cannabis sentence, his Honour would have accumulated the sentences to reflect the increased criminality of dealing in multiple drugs, meaning the appellant would not have benefited in any net sense.

Orders Made

  • Leave granted for an extension of time to apply for leave to appeal against the sentence imposed by the District Court on 7 August 2003
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the strength of the Crown case is not a proper factor in assessing the utilitarian value of a guilty plea, though it may be relevant to evaluating remorse.
  • Identifying a sentencing error does not automatically lead to a lesser sentence: the Court must still be satisfied under section 6(3) of the Criminal Appeal Act 1912 that a less severe sentence is warranted in law.
  • An erroneous reference to the wrong maximum penalty at sentencing is capable of constituting appellable error, but will not necessarily result in resentencing where the sentences imposed do not reflect reliance on the inflated maximum.
  • Where an offender deals commercially in multiple prohibited drugs, the sentencing court may take the increased criminality of multiple-drug offending into account when considering whether sentences should be accumulated or made concurrent.
  • A delay in filing an application for leave to appeal may be excused where it results from an inaccuracy in the offender's own commitment warrant rather than any fault on the offender's part.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 178BA
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Regina v Thomson & Houlton (2000) 49 NSWLR 383
- Regina v Drew [2000] NSWCCA 384
- Regina v Mason [2000] NSWCCA 82