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Court of Criminal Appeal 30 November 2005

Cunningham v R

[2005] NSWCCA 416

DrugsFirearms & weapons

Citation: Cunningham v R [2005] NSWCCA 416
Court: NSW Court of Criminal Appeal
Date: 30 November 2005
Judge(s): Studdert J (primary judgment), Whealy J, Howie J

Background

The appellant was sentenced in the District Court at Gosford in April 2004 following guilty pleas to two counts of supplying cannabis leaf, selling a prohibited pistol to an unauthorised person, and possessing a prohibited weapon (a silencer). The sentencing judge also took into account additional offences on a Form 1 (a document used to have related charges considered at sentencing without a separate conviction), including the unauthorised sale of ammunition, possession of stolen motor vehicle plates, and sale of the silencer.

The offences were uncovered through an undercover police operation. Between July and September 2002, an undercover officer conducted a series of controlled purchases from the appellant at a car park in Wyong, acquiring cannabis leaf on two occasions and a semi-automatic pistol with silencer and ammunition on a third occasion.

The appellant, who was self-represented, sought leave to appeal against the sentences on multiple grounds, arguing various errors in the sentencing judge's approach. The effective total sentence was six years with a non-parole period of four years.

  • Whether the sentencing judge erred in accumulating (stacking) sentences rather than making them concurrent
  • Whether the judge gave adequate weight to the appellant's guilty pleas
  • Whether the judge gave adequate weight to the appellant's background, including his difficult upbringing and history of drug dependence
  • Whether the totality principle (requiring the overall sentence to be proportionate to the total criminality) was correctly applied
  • Whether the sentences were manifestly excessive
  • Whether the appellant's health issues warranted a reduction in sentence

Decision

The Court granted leave to appeal but dismissed the appeal on all grounds. Studdert J, with whom Whealy J and Howie J agreed, found that no error in the sentencing judge's approach had been demonstrated.

On the accumulation of sentences, the Court found the judge's decision to run the drug supply sentences consecutively to the firearms sentence was appropriate given that the offences were distinct in nature and time. The Court applied the principle from Pearce v The Queen that separate sentences for separate offences will ordinarily be accumulated unless there is a proper basis for concurrency.

The Court was satisfied that the sentencing judge had properly considered the guilty pleas and had given appropriate discounts in that regard. The judge had also considered the appellant's background, including his violent upbringing, his back injury, and his long-term drug use, along with a psychologist's report. The Court found no error in the weight given to those matters.

On the health submissions, the appellant raised concerns about depression, weight loss, and hepatitis C. The Court noted that the medical records before the sentencing judge were limited and provided no clear basis for a reduced sentence. The appellant's in-custody rehabilitation, including engagement with a prison chaplain and completion of courses, was acknowledged favourably, but the Court confirmed it could not intervene in the absence of a demonstrated sentencing error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that accumulating sentences for offences that are distinct in time and character is consistent with the principles in Pearce v The Queen.
  • No error was established merely because a sentencing judge did not give greater weight to an offender's personal background, where that background had been considered and a psychologist's report was before the court.
  • Positive in-custody conduct, including rehabilitation programs and engagement with prison chaplaincy, does not in itself justify appellate intervention unless an error in the original sentencing is also established.
  • Under the totality principle, an effective sentence of six years with a four-year non-parole period for multiple serious drug and firearms offences, including the sale of a prohibited pistol carrying a 20-year maximum, was held to fall within the proper exercise of the sentencing discretion.
  • Limited or inconclusive medical evidence before the sentencing court will not, without more, support a finding that the judge erred in failing to reduce a sentence on health grounds.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 (supply of prohibited drugs)
- Firearms Act 1996 (NSW), s 51 (sale of prohibited pistol)
- Weapons Prohibition Act 1998 (NSW) (possession of prohibited weapon)

Cases
- Pearce v The Queen (1998) 194 CLR 610 (principles on accumulation of sentences)
- R v Thomson (2000) 49 NSWLR 383 (sentencing principles, discount for guilty plea)