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Court of Criminal Appeal 13 November 2008

Ly v R

[2008] NSWCCA 262

Drugs

Citation: Ly v R [2008] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 13 November 2008
Judge(s): Beazley JA, Hislop J, Harrison J

Background

The appellant pleaded guilty in the District Court to supplying methylamphetamine in a large commercial quantity (1,101.22 grams, with an estimated street value of approximately $550,000) at Parramatta on 5 September 2006. Police found the drugs along with 28 active mobile phones, two sets of scales, and cash totalling over $330,000 across his home and person. His declared taxable income over three years prior to arrest was modest, yet joint bank accounts held approximately $418,000.

The sentencing judge, Morgan DCJ, imposed a non-parole period of eight years and a total term of twelve years. Three charges of goods in custody (relating to the cash) were taken into account on a Form 1. The sentencing judge found special circumstances, applied a 25 percent discount for the utilitarian value of the guilty plea, and categorised the offence as falling within the mid range of seriousness for offences of its type.

The appellant sought leave to appeal against that sentence, contending the offence should have been placed in the low range of seriousness, which would have warranted a lesser sentence.

  • Whether the sentencing judge erred in categorising the offence as falling within the mid range of seriousness for large commercial drug supply offences under the Drug Misuse and Trafficking Act 1985
  • Whether the Crown's statements at the sentencing hearing amounted to a concession that the offence fell below the mid range of seriousness
  • Whether the quantity of the drug, at only modestly above the large commercial threshold, and the absence of certain aggravating features placed the offence in the low range
  • Whether the sentence imposed was inconsistent with comparable decisions and therefore outside the permissible range

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Hislop J (Beazley JA and Harrison J agreeing) finding that no error had been established in the sentencing judge's exercise of discretion.

On the Crown concession point, the Court found that the Crown's statements at the sentencing hearing did not constitute a clear concession that the offence fell below the mid range. The Crown had acknowledged various subjective features but had also emphasised significant objective factors, including the large cash sums and multiple phones pointing to an established drug distribution operation.

The Court accepted that the quantity of drug was only modestly above the large commercial threshold, and that the appellant was not shown to be operating at the highest organisational levels. However, the sentencing judge had properly weighed these factors against the substantial cash holdings, the number of mobile phones, the absence of a user-dealer relationship, and the three Form 1 goods-in-custody offences. Her Honour's conclusion that the offence sat in the mid range was open to her on that material.

The Court reaffirmed that a sentencing judge's decision is prima facie correct and that an appellate court will interfere only where error is demonstrated and a less severe sentence is positively warranted in law. Neither condition was satisfied here. The non-parole period of eight years, reflecting a pre-discount starting point of approximately ten years and eight months against a standard non-parole period of fifteen years, was consistent with comparable sentencing decisions and did not lie outside the relevant range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding that an offence falls within the mid range of seriousness for large commercial drug supply is not rendered erroneous simply because the quantity involved is only modestly above the large commercial threshold.
  • Equivocal statements by the Crown at a sentencing hearing about the range of seriousness do not necessarily constitute a binding concession that limits the sentencing judge's assessment.
  • Under R v Simpson (2001) 53 NSWLR 704, the Court of Criminal Appeal will only interfere with a sentence where error is established and the appellate court forms the positive opinion that a less severe sentence is warranted in law.
  • In dismissing the appeal, the Court confirmed that indicia such as large unexplained cash holdings, numerous active mobile phones, and goods-in-custody charges are legitimate factors pointing away from a low-range characterisation, even where organisational seniority is not established.
  • The standard non-parole period for large commercial drug supply under the Crimes (Sentencing Procedure) Act 1999 is fifteen years; departures below that figure require identification of specific grounds, such as a guilty plea or special circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A-D and table
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- GAS v The Queen (2004) 217 CLR 198
- Whittaker v The King (1928) 41 CLR 230
- R v Simpson (2001) 53 NSWLR 704
- R v Holder (1983) 3 NSWLR 245
- R v Blair [2005] NSWCCA 78
- R v Gao & Lim [2007] NSWCCA 343
- R v MacDonnell (2002) 128 A Crim R 44
- R v Chan [1999] NSWCCA 103
- Fahs v R [2007] NSWCCA 26