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Court of Criminal Appeal 5 May 2006

MD v. Regina

[2006] NSWCCA 142

HomicideDrugs
CRIMINAL LAW APPEALS LEAVE TO APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: MD v Regina [2006] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 5 May 2006
Judge(s): Hodgson JA, James J, Hoeben J

Background

The applicant pleaded guilty on 30 July 2003 to two counts of supplying prohibited drugs (heroin and cocaine) under s 25(1) of the Drug Misuse and Trafficking Act, arising from an organised street-level drug supply operation conducted from a family home in Punchbowl between January and December 2000. The operation was substantial: it involved juvenile street runners working in shifts, telephone intercepts, undercover purchases, and approximately 600 hours of video surveillance. The applicant was found to have played an organisational role, including recruiting others to sell drugs.

On 27 February 2004, the District Court sentenced the applicant to six years imprisonment on each charge, with a non-parole period of four years, to run concurrently with one another. At the time of sentence, the applicant was already serving a ten-year term for manslaughter. The practical effect of the drug sentences was to delay the applicant's eligibility for parole by approximately one year and nine months.

The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentences were manifestly excessive in all the circumstances
  • Whether the sentencing judge complied with the requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999, which requires the court to take into account specified aggravating and mitigating factors
  • Whether the sentencing judge gave an appropriate discount for the applicant's early guilty plea, and whether the failure to quantify that discount in the reasons constituted an error warranting appellate intervention

Decision

The Court found no error in the sentencing judge's approach to s 21A. Hodgson JA reviewed each of the contested aggravating and mitigating factors and concluded that, while some were not addressed with explicit commentary, the sentencing judge had adequately adverted to the relevant matters. There was no requirement to comment expressly on the specific nature of the offences in the applicant's prior record.

On the guilty plea discount, the sentencing judge had acknowledged both the early timing of the plea and its considerable utilitarian value. Hodgson JA held that the failure to quantify the discount in percentage terms did not, in the circumstances, constitute an error warranting appellate intervention, given that the level of the sentences themselves indicated the discount had been applied.

The Court assessed manifest excessiveness by reference to the practical impact of the sentences on the applicant, rather than in the abstract. Because the applicant was already serving a manslaughter sentence, the drug sentences operated only to delay parole eligibility by about one year and nine months. Even accounting for the early plea, the applicant's age, his lack of demonstrated participation in the profits, and his susceptibility to the influence of siblings and associates, the Court found the sentences could not be characterised as manifestly excessive given the scale of the criminal enterprise and the applicant's organisational role within it.

The Court also considered that the conditions of the applicant's custody at the High Risk Management Unit at Goulburn Correctional Centre were not a weighty mitigating factor, since the period during which the drug sentences had any operative effect was one that began almost a year after that harsh custody had ended.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excessiveness must be assessed having regard to the practical impact of the sentence on the applicant, particularly where that sentence operates concurrently with an existing term.
  • A sentencing judge's failure to quantify a guilty plea discount in the reasons does not automatically constitute appellate error; it is sufficient that the level of the sentence reflects the discount having been applied.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is not required to provide explicit commentary on every listed factor; adequate reference to the relevant matters is sufficient to demonstrate compliance.
  • Harsh conditions of custody may carry limited mitigating weight where the period of the sentence under appeal does not coincide with the period in which those conditions were experienced.
  • An organisational role in a sustained, structured drug supply enterprise remains a significant sentencing consideration, even where the offender was not shown to have directly profited from the operation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act (NSW), s 25(1) and s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited
- Kanaan v Regina [2006] NSWCCA 109
- R v Ahmadi [1999] NSWCCA 161
- R v Ambatsidis [2000] NSWCCA 125
- R v Dib [2003] NSWCCA 117
- R v Dimovski NSWCCA 3/8/92
- R v Markarian [2003] NSWCCA 8, 137 A Crim R 497
- R v SY [2003] NSWCCA 291
- R v Tipler [2000] NSWCCA 382
- Regina v Street [2005] NSWCCA 139
- Regina v Walker [2005] NSWCCA 109