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Court of Criminal Appeal 15 May 2008

FISHER v R

[2008] NSWCCA 103

Drugs

Citation: Fisher v R [2008] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 15 May 2008
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant pleaded guilty on the first day of his trial to 10 drug offences across two indictments, following an extensive period of offending between November 2003 and January 2005. The offences included supplying and procuring the importation of cocaine, supplying MDMA, ketamine, methylamphetamine, and large quantities of GHB (4-Hydroxybutanoic Acid). He operated as the principal of a drug supply network, paying rent on approximately four apartments at Potts Point where associates stored and sold drugs on his behalf.

In November 2006, the District Court sentenced the applicant across the 10 counts, with sentences structured to run partly concurrently and partly cumulatively. The effective total sentence was 9 years and 10 months, with a non-parole period of 7 years and 4 months. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by partially accumulating sentences for the first four counts on the first indictment
  • Whether a sufficient discount was applied for assistance provided to law enforcement authorities
  • Whether the sentencing judge failed to adequately consider the applicant's medical condition in determining the head sentence
  • Whether the finding of special circumstances was properly reflected in the structure of the cumulative sentences
  • Whether the total effective sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hulme J (with Grove J and Simpson J agreeing) found that, while a number of errors in the sentencing judge's approach were identifiable, those errors had operated in the applicant's favour rather than against him.

On the question of the individual sentences, the Court found that none of the individual sentences were manifestly excessive. However, Hulme J was critical of the degree of accumulation ordered. Many sentences commenced only two months after the preceding one, meaning the effective punishment for a number of serious offences was just two months. For three of the offences carrying non-parole periods of five years each, those periods were wholly subsumed within the non-parole period of an adjacent sentence, producing what the Court described as "grossly inadequate" effective punishment for those offences.

The Court observed that the standard non-parole period for the commercial quantity supply offences (counts 6 to 10) was 10 years under the NSW Drug Misuse and Trafficking Act. Hulme J concluded that, judged against either the statutory maximum or the standard non-parole period, starting points significantly higher than 10 years for each of those offences were required before any discount for pleas and assistance. The applicant was described as "extremely fortunate" to have received the sentences he did.

Despite identifying errors in the relativity between the effective non-parole period and the total effective sentence, the Court declined to intervene. Both figures were so low relative to what the offending warranted that the Court would not contemplate reducing either.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identified sentencing errors will not automatically produce a successful appeal where those errors have worked in the applicant's favour, leaving the overall sentence below what the offending warranted.
  • Where an applicant's effective sentence is already substantially lower than what the offending justified, the Court will decline to reduce it further even where structural errors in the accumulation of sentences are apparent.
  • The standard non-parole period of 10 years under the Drug Misuse and Trafficking Act for commercial quantity supply offences represented a reference point the Court treated as a significant benchmark, with serious, organised, multi-drug supply operations ordinarily requiring starting points above that figure.
  • A degree of accumulation so modest that some serious offences attract only two months of effective punishment may be characterised as a grossly inadequate sentencing response, even where the overall sentence structure is not itself appealed by the Crown.
  • No error was established on the grounds concerning the discount for assistance, the applicant's medical condition, or the treatment of special circumstances in a manner that could displace the overall outcome.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25(2) (supply of indictable and commercial quantities of prohibited drugs; standard non-parole periods)
- Customs Act 1901 (Cth), s 233B (importation of trafficable quantity of cocaine)

Cases:
- R v Harris (cited by Hulme J in relation to the principles governing accumulation of sentences for multiple serious offences; full citation not reproduced in the provided text)