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Court of Criminal Appeal 3 December 2008

Stack v R

[2008] NSWCCA 271

Also reported as 191 A Crim R 251
Drugs
SENTENCING OFFENDER APPEAL DISMISSED

Citation: Stack v R [2008] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 3 December 2008
Judge(s): McClellan CJ at CL, Simpson J, McCallum J

Background

The appellant pleaded guilty in the District Court to one count of ongoing supply of methylamphetamine and one count of supplying methylamphetamine, with two further supply offences taken into account on a Form 1. The offences arose from a series of sales to undercover police officers between September 2005 and March 2006, involving total quantities ranging from small gram amounts to approximately three ounces. The appellant was arrested at a final meeting with an undercover operative while carrying three ounces of the drug.

The sentencing judge found that the appellant acted as a middleman, obtaining drugs from a co-offender (Hopkins) on request and completing sales, rather than controlling access to the supply chain himself. A concurrent sentence was imposed comprising a non-parole period of three years and an additional term of two years for the ongoing supply count, and a non-parole period of two years and an additional term of two years for the supply count.

The appellant sought leave to appeal, contending that the sentencing judge made an error in characterising his role and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant's role in the supply offence was that of a "middleman" rather than a "facilitator" comparable to the co-offender Cruickshank
  • Whether the sentences imposed were manifestly excessive by reference to sentences imposed in comparable cases, including those involving co-offenders

Decision

On the first ground, the Court found no error in the sentencing judge's characterisation of the appellant as a middleman. The judge had drawn a clear distinction between those who attended the locations where drugs and money changed hands and those who did not. The appellant was physically present at each relevant transaction, whereas the co-offender Cruickshank had handled only telephone inquiries and logistics without attending any exchange. Counsel for the appellant had also conceded at the sentencing hearing that the appellant played a more significant role than Cruickshank and was higher in the drug supply chain. The Court held that the first ground was without substance.

On the question of manifest excess, the Court reaffirmed that the proper approach on a sentence appeal is not to compare the impugned sentence against more lenient decisions to establish excess. The relevant question, drawn from R v Morgan (1993), is whether the sentence falls within the range appropriate to the objective gravity of the particular offence and the subjective circumstances of the particular offender. A sentence is not excessive simply because more lenient comparable decisions can be found.

The Court examined the cases relied on by the appellant in detail and found none of them demonstrated that the present sentences fell outside the appropriate range. The cases involved either much smaller quantities, distinctive subjective features such as significant personal tragedy, or were decided on different statutory provisions. In one instance, the Crown noted that the sentence in the comparable case had itself been described by the Court as lenient. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence on appeal is not established as excessive merely because more lenient sentences can be found in comparable cases. The operative question is whether the sentence falls within the range appropriate to the gravity of the offence and the offender's subjective circumstances.
  • In distinguishing sentencing roles, the Court of Criminal Appeal confirmed that physical presence at drug transactions is a material factor separating a "middleman" from a "facilitator" whose involvement is limited to remote logistics.
  • Concessions made by defence counsel at the sentencing hearing can be significant. The appellant's counsel had acknowledged at first instance that the appellant played a more significant role than the co-offender used for comparison, which informed the Court's rejection of the parity argument on appeal.
  • Comparing sentences across cases requires close attention to whether the cases are genuinely comparable. Differences in drug quantity, purity, subjective circumstances, and applicable statutory provisions can all disqualify a purportedly comparable decision from supporting a manifest excess argument.
  • In dismissing the appeal, the Court applied R v Morgan (1993) 70 A Crim R 368 as the governing principle, distinguishing comparisons with co-offenders (which remain relevant) from broader comparisons with unrelated offenders (which do not control the analysis).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A

Cases
- R v Bacon (2000) 120 A Crim R 28
- R v Decandia (unreported, Court of Criminal Appeal, 8 July 1994)
- R v Fogg [2002] NSWCCA 395
- R v Majzoub [2006] NSWCCA 12
- R v Morgan (1993) 70 A Crim R 368
- R v Radisich [2006] NSWCCA 52
- R v Schumacher [2006] NSWCCA 135