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6
Court of Criminal Appeal 18 May 2006

MRN v R

[2006] NSWCCA 155

Drugs
PLEAS OF GUILTY TO SIX DRUG CHARGES POSESSION OF PRE SUPPLY CANNABIS VERY SERIOUS COURSE OF CRIMINAL CONDUCT TIME CUSTODY SUBJECTIVE CIRCUMSTANCES

Citation: MRN v R [2006] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 18 May 2006
Judge(s): McClellan CJ at CL, James J, Simpson J

Background

The applicant operated a legitimate motor vehicle accessories business in the Campbelltown area, which by 2002 was in financial difficulty. Over a one-month period in November and December 2002, he used his business telephone and premises to supply a range of prohibited drugs, including methylamphetamine, MDMA, LSD, cocaine, and cannabis. He was also found in possession of 45 litres of hypo-phosphorous acid, a precursor used in manufacturing methylamphetamine.

The applicant pleaded guilty in the District Court to six drug charges and asked the sentencing judge to take into account a further 11 offences on a Form 1 (a procedural document listing additional related offences dealt with at sentencing without separate conviction). Maguire DCJ sentenced him to an aggregate of 10 years and 7 months, with a non-parole period of 8 years and 2 months.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentences were manifestly excessive and that the sentencing judge made a series of factual and legal errors.

  • Whether the sentencing judge erred in treating all 5,200 intercepted telephone calls and SMS messages as relating to drug dealing
  • Whether the sentencing judge took an incorrect approach to the applicant's assistance to authorities
  • Whether the sentencing judge unfairly attributed delays in the proceedings entirely to the applicant, and failed to properly account for those delays as a mitigating factor
  • Whether the sentencing judge correctly assessed the evidence of rehabilitation and whether special circumstances existed to justify varying the statutory non-parole period ratio
  • Whether the aggregate sentence and individual sentences were within the available range for offending of this nature

Decision

The Court of Criminal Appeal identified several errors in the sentencing judge's approach, though it found that not all of them were individually significant. On the telephone evidence, the Court found it was not established that all 5,200 intercepted calls and messages related to drug dealing, and treating them as if they did constituted an error of fact. On the assistance to authorities, the Court found a problem in the sentencing judge's approach, though this was characterised as not especially significant.

The most consequential error concerned the treatment of delay. The sentencing judge had assumed that all delays in bringing the matter to sentence were attributable to the applicant. The Court found this assumption was unfair to the applicant and should not have been made without supporting evidence. Delay in proceedings, where not caused by a defendant, is a mitigating factor that must be properly considered.

The Court accepted that the individual sentences and the aggregate sentence were not outside the range available for drug dealing on the scale involved. The offending was described as a very serious course of criminal conduct warranting a substantial period of full-time custody. However, the combined magnitude of the sentencing errors was sufficient to justify resentencing.

In resentencing, the Court varied the statutory non-parole period ratio on the basis of the applicant's evident rehabilitation. The reduced sentences remained substantial, reflecting the seriousness of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Applicant resentenced as follows:
  • Count 1: 4 years imprisonment, commencing 10 October 2003, expiring 9 October 2007; non-parole period of 3 years expiring 9 October 2006
  • Count 4: 3 years imprisonment, commencing 10 October 2003, expiring 9 October 2006; non-parole period of 2 years expiring 9 October 2005
  • Count 6 (including Form 1 offences): 7 years imprisonment, commencing 10 October 2004, expiring 9 October 2011; non-parole period of 4 years expiring 9 October 2008
  • Counts 8, 9 and 10: 5 years imprisonment, commencing 10 October 2003, expiring 9 October 2008; non-parole period of 3 years and 6 months expiring 9 April 2007
  • Aggregate: head sentence of 8 years; non-parole period of 5 years; earliest parole eligibility date 9 October 2008

Key Takeaways

  • A sentencing court cannot assume that all delays in proceedings were caused by the defendant without evidentiary foundation; unattributed delay must be treated as a mitigating circumstance in the defendant's favour.
  • Intercepted communications used as evidence of the scale of offending must be assessed with care; it is an error of fact to treat all such communications as drug-related where that has not been established on the evidence.
  • The Court of Criminal Appeal confirmed that demonstrating sentencing error alone is insufficient to justify appellate intervention; the applicant must also show that another sentence was warranted in law, consistent with the approach in R v Simpson and R v Johnson.
  • Where multiple errors affect the sentencing process, their combined magnitude may justify resentencing even where individual errors are not each independently decisive.
  • Evidence of genuine rehabilitation can constitute a basis for varying the statutory non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999, even in cases involving serious and sustained drug supply.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, ss 11, 21A, 23, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24A, 25A, 29

Cases:
- R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
- R v Douar [2005] NSWCCA 455
- R v Fahda [1999] NSWCCA 267
- R v Gay [2002] NSWCCA 6
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Johnson [2005] NSWCCA 186
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Schwabegger [1998] 4 VR 649
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
- R v Todd (1982) 2 NSWLR 517