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Court of Criminal Appeal 10 August 2007

Burrows v R

[2007] NSWCCA 239

Also reported as 181 A Crim R 333
Drugs
SENTENCE GUILTY PLEAS UTILITARIAN VALUE AGGRAVATING FACTORS SUPPLY PROHIBITED DRUG

Citation: Burrows v R [2007] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 10 August 2007
Judge(s): Tobias JA, Latham J, Mathews AJ

Background

The appellant was a street-level heroin dealer who operated as part of a larger distribution network in Kings Cross, Sydney. Over a three-week period in September 2003, she supplied between 30 and 50 grams of heroin to customers in $50 and $100 lots, while also using a portion of the drug to feed her own daily habit. She was arrested on 25 September 2003.

Following a plea of guilty to one count of supplying a prohibited drug in a commercial quantity under the Drug Misuse and Trafficking Act 1985, the appellant was sentenced in the District Court to a total of three years imprisonment, with a non-parole period of 20 months. The sentencing judge identified her as the most active participant among her co-offenders and found she was part of a highly organised criminal drug distribution network.

The appellant sought leave to appeal against her sentence, raising concerns about the utilitarian discount applied to her guilty plea and the use of "planned organised criminal activity" as an aggravating factor.

  • Whether the sentencing judge erred by rejecting the Crown's concession that the guilty plea was entered at the first available opportunity, without giving the appellant an opportunity to make submissions on the appropriate discount.
  • Whether the sentencing judge failed to give adequate weight to the utilitarian value of the guilty plea.
  • Whether the sentencing judge erred in treating the offence as having been committed as part of a planned organised criminal activity, given that planning is arguably an inherent feature of drug supply offences.

Decision

On the guilty plea discount, the Court accepted that the sentencing judge had departed from the Crown's concession that the plea was entered at the first available opportunity, and had done so without inviting further submissions. The Court found this was a procedural irregularity. However, the Court concluded that the sentencing judge had still expressly acknowledged and applied a discount for the utilitarian value of the plea, rendering the error immaterial to the outcome.

On the adequacy of the discount, the Court acknowledged the sentencing judge's reasons were not entirely clear as to the precise discount applied. However, after reviewing the process followed, the Court was not persuaded that the discount was inadequate in the circumstances.

On the aggravating factor of planned organised criminal activity, the Court held it was open to the sentencing judge to apply this factor. The Court drew a distinction between bare street dealing and participation in a structured distribution network. The appellant's voluntary involvement in an organised operation capable of supplying large quantities of different drugs went beyond any planning inherent to the basic offence of supply.

Significantly, the Court added that even if any of the alleged errors had been established, it would not have substituted a lesser sentence. The offence was objectively very serious, and the appellant was found to be the most active and entrenched participant in the network.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's departure from a Crown concession that a guilty plea was entered at the first available opportunity, without inviting submissions, may constitute a procedural error, but will not automatically warrant appellate intervention if an adequate discount was nonetheless applied.
  • Under the sentencing framework confirmed in this decision, the utilitarian value of a guilty plea must be expressly acknowledged and applied, but the precise mechanism of calculation need not be rigid provided the reasoning is apparent.
  • Participation in a structured drug distribution network can properly be treated as the aggravating factor of "planned organised criminal activity," even for a street-level dealer, provided the involvement goes beyond the planning inherent in the bare offence of supply.
  • The Court of Criminal Appeal confirmed that not every procedural imperfection in sentencing will warrant a lesser sentence: where the original sentence was not shown to be outside the range warranted in law, the appeal will fail.
  • In dismissing the appeal, the Court reinforced that general deterrence carries significant weight in commercial drug supply matters, particularly where an offender is part of a well-organised distribution network.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Fahs v R [2007] NSWCCA 26
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA
- Regina v Dib [2003] NSWCCA 117
- Regina v Scott [2003] NSWCCA 286
- R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398
- R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97