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16
Court of Criminal Appeal 23 July 2007

R v Burns

[2007] NSWCCA 228

Drugs
CRIMINAL LAW

Citation: R v Burns [2007] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 23 July 2007
Judge(s): Spigelman CJ, Simpson J, Harrison J

Background

The respondent, a young man aged 23, pleaded guilty to multiple offences of supplying MDMA (ecstasy) in Orange, NSW. The offences occurred between January and June 2006, arising from an undercover police operation targeting a local nightclub. He sold tablets to undercover officers on several occasions, supplying a total of approximately 22.68 grams, nearly 20 times the indictable quantity.

When arrested, the respondent cooperated fully and gave an electronically recorded interview in which he confessed to supplying approximately 800 tablets over several months. Crucially, his confession was the only evidence available to police of his broader supplying activity. He had no prior convictions, had completed a trade apprenticeship, held stable employment, and had voluntarily ceased drug use and dealing before his arrest.

The District Court sentenced the respondent to two years' imprisonment on the principal charge, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, and imposed a $10,000 fine on the lesser charge. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by suspending a full-time custodial sentence for offences of supplying a prohibited drug in the absence of special circumstances.
  • Whether the respondent's subjective features, including youth, previous good character, unlikelihood of reoffending, contrition, early admissions, voluntary cessation of offending, and unprompted confession to offences not otherwise likely to have been detected, were sufficient to warrant the imposition of a non-custodial sentence.
  • Whether the Crown established that the sentences imposed were manifestly inadequate, justifying appellate intervention.

Decision

Harrison J, with whom Spigelman CJ and Simpson J agreed, dismissed the Crown appeal. The Court found that no relevant error had been demonstrated in the sentencing judge's exercise of discretion, and that the sentences were not manifestly inadequate.

The Court acknowledged that a sentence of full-time imprisonment could have withstood appellate scrutiny on these facts. However, the relevant question on a Crown appeal is not whether a different sentence would have been appropriate, but whether the sentencing discretion was infected by error resulting in manifest inadequacy. The Court found it was not.

Considerable weight was given to the combination of subjective factors present. These included the respondent's youth, genuine remorse, early guilty pleas, previous good character, stable employment history, voluntary cessation of offending, and, notably, his frank confession to a course of supply that police had no independent means of detecting. The sentencing judge was entitled to treat this combination as amounting to special circumstances.

The Court also reiterated the narrow basis on which appellate courts will interfere with sentencing discretion on grounds of "insufficient weight" given to particular factors. Complaints that a sentencing judge gave too much weight to subjective considerations fall squarely within the first-instance judge's discretionary domain and do not easily attract appellate correction.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A suspended sentence for drug supply offences is not automatically unavailable; where a sentencing judge identifies a compelling combination of subjective features, the exercise of discretion to suspend may withstand appellate scrutiny even for serious offences.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test on a Crown appeal is whether the sentencing discretion was infected by error resulting in manifest inadequacy, not whether a different and harsher sentence would also have been appropriate.
  • A voluntary and unprompted confession to offences that police could not otherwise have detected is a significant mitigating factor that a sentencing court is entitled to weigh heavily.
  • Appellate courts treat submissions about "insufficient weight" afforded to particular factors with considerable caution, recognising that the balancing of competing sentencing considerations is a matter for the first-instance judge.
  • No single subjective factor was determinative; it was the cumulative force of youth, prior good character, contrition, early admissions, voluntary cessation of offending, and the unprompted confession that justified the sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)

Cases:
- Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
- Dinsdale v The Queen (2000) 202 CLR 321
- Elliott v Harris (No 2) (1976) 13 SASR 516
- Griffiths v The Queen (1989) 167 CLR 372
- Pearce v The Queen (1998) 194 CLR 610
- R v Bacon (2000) A Crim R 28
- R v Baker [2000] NSWCCA 85
- R v Ceissman [2004] NSWCCA 466
- R v Douglas [2007] NSWCCA 31
- R v Hutton [2004] NSWCCA 60
- R v Lopez [1999] NSWCCA 245
- R v Wall [2002] NSWCCA 42
- R v Zamagias [2002] NSWCCA 17