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Court of Criminal Appeal 22 May 2007

TRAN v R

[2007] NSWCCA 140

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE COMMERCIAL BUSINESS PARTLY CONCURRENT SENTENCES IMPOSED

Citation: Tran v R [2007] NSWCCA 140
Court: New South Wales Court of Criminal Appeal
Date: 22 May 2007
Judge(s): McClellan CJ at CL; Hidden J; Rothman J

Background

The appellant was convicted in the District Court of two offences under the Drug Misuse and Trafficking Act 1985 (NSW). The first was ongoing supply of heroin on five separate occasions under s 25A, which carries a maximum penalty of 20 years imprisonment. The second was deemed supply of heroin under s 25, which carries a maximum of 15 years.

The sentencing judge found the appellant operated as a commercial supplier above street level. On four occasions he supplied approximately 5-gram packages of heroin; on a fifth occasion he supplied 56 grams. On that same day, police found him in possession of a further 75 grams, giving rise to the deemed supply charge. In total, he had supplied or possessed 151 grams of heroin.

McLoughlin DCJ sentenced the appellant to 3 years and 9 months (non-parole period of 2 years and 3 months) on the first count and 2 years and 6 months (non-parole period of 12 months) on the second. The sentences were made partly concurrent, with the second sentence commencing three months before the non-parole period on the first expired. The total effective sentence was 4 years and 6 months, with a total non-parole period of 3 years.

  • Whether the sentencing judge erred by providing insufficient concurrency between the two sentences, failing to give adequate effect to the totality principle.
  • Whether the sentencing judge impermissibly double-counted objective criminality by treating evidence relevant to both counts as elevating the seriousness of each offence individually.
  • Whether the relationship between s 25A and s 25 offences requires a particular sentencing approach to avoid punishing an offender twice for overlapping elements.

Decision

The Court of Criminal Appeal dismissed the appeal. On the totality ground, McClellan CJ at CL found no error in the degree of concurrency ordered. The sentencing judge had properly identified that the s 25A and s 25 offences were factually distinct: the 75 grams found in the appellant's possession on the day of the fifth supply came from a separate source to the drugs involved in the earlier supplies, and the evidence did not suggest the earlier occasions had drawn from one larger quantity of which the 75 grams was the remainder. A degree of concurrency was warranted, and his Honour provided it.

On the double-counting submission, the Court found no substance in the argument. The appellant contended that the sentencing judge's finding of a commercial enterprise, informed by evidence across both counts, had impermissibly inflated the objective seriousness of each offence. McClellan CJ at CL rejected this. Even if such an error had occurred, the consequence would have been to increase each individual sentence, yet the appellant expressly did not contend that either sentence was excessive.

The Court also confirmed the applicable legal framework. Under the principles in Pearce v The Queen and Johnson v The Queen, where offences contain common elements, an offender must not be punished twice for those overlapping elements. The legislature had already addressed the risk of double jeopardy in s 25A(5), which provides that a person convicted under s 25A cannot be convicted under s 25 on the same or substantially the same facts. This prevented the heroin from any of the five supply occasions from forming the basis of the deemed supply charge.

Rothman J added that, had he been sentencing afresh, he might have imposed a more significant sentence for the s 25 offence and provided greater concurrency. However, his Honour emphasised that sentencing is not a mathematical exercise, and no single result is mandated. The sentencing judge's approach, while slightly at variance with the "orthodox method" described in Mill v The Queen and Johnson, disclosed no error and the total sentence would not have passed the threshold for intervention under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 25A(5) of the Drug Misuse and Trafficking Act 1985, a person convicted of ongoing supply under s 25A cannot also be convicted under s 25 on the same or substantially the same facts, preventing double punishment for the same supply conduct.
  • Where offences under s 25 and s 25A are sentenced together, the principles in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616 require that an offender not be punished twice for elements common to both offences.
  • The Court of Criminal Appeal confirmed that sentencing is not a mathematical exercise: no single outcome is mandated, and flexibility must be allowed to sentencing judges provided their approach is consistent and accords with the statutory regime.
  • A ground of appeal that the sentencing judge impermissibly elevated objective seriousness by relying on overlapping evidence will be difficult to sustain where the appellant does not separately contend that the individual sentences were excessive.
  • In dismissing the appeal, the Court affirmed that a partly concurrent sentence structure can properly reflect both the distinctness of separate drug supply offences and the totality principle, depending on the factual relationship between the offences.

Legislation and Cases Referenced

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

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1998) 166 CLR 59
- R v Arnott [2001] NSWCCA 497
- R v Le [2002] NSWCCA 26
- R v Gill [2002] NSWCCA 93
- R v Radford [2002] NSWCCA 122
- R v Bruppacher [2002] NSWCCA 182
- R v Gordon [2002] NSWCCA 476
- R v Sakkar [2003] NSWCCA 26
- R v Siljanovski and Kostadinovic [2003] NSWCCA 38