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Court of Criminal Appeal 19 December 2008

R v KUMAR, R v FEAGAIGA

[2008] NSWCCA 328

Drugs

Citation: R v Kumar, R v Feagaiga [2008] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 19 December 2008
Judge(s): McClellan CJ at CL; Hulme J; Hidden J

Background

Two offenders, Kumar and Feagaiga, were sentenced in the District Court in November 2007 following convictions for the supply of commercial quantities of prohibited drugs. Feagaiga was convicted on ten offences, including four involving commercial quantities of ecstasy and methylamphetamine supplied to an undercover police officer between August and September 2006. Kumar was convicted as a participant in those same four principal offences, having passed the drugs to Feagaiga shortly before each sale took place.

The transactions had been captured through extensive police surveillance, including physical, video, and telephone intercept evidence. The four commercial quantity supplies involved hundreds of ecstasy tablets and substantial cash payments, with the final transaction on 30 August 2006 resulting in the arrest of both offenders.

Sides DCJ imposed effective sentences of six years and three months (Feagaiga) and six years (Kumar), both with non-parole periods of approximately four years. The Crown appealed both sentences as manifestly inadequate. Kumar separately appealed his sentence as manifestly excessive and argued it was disproportionate compared with the sentence imposed on a co-offender, Babanour.

  • Whether the sentences imposed by Sides DCJ on both offenders were manifestly inadequate, having regard to the seriousness of commercial quantity drug supply offences and the applicable standard non-parole periods.
  • Whether Sides DCJ made discrete errors in sentencing Kumar, including by finding that Kumar had provided valuable assistance to authorities, applying an excessive discount for that assistance, and failing to structure the sentences so they reflected his own finding about the level of criminality.
  • Whether the sentences failed to adequately reflect the aggregate criminality of the offending.
  • Whether Kumar's sentence was excessive by comparison with the sentence imposed on the co-offender Babanour.

Decision

The Court dismissed Kumar's appeal against his own sentence. His argument that the sentences were manifestly excessive and disproportionate to the treatment of Babanour did not persuade the Court.

On the Crown appeals, the majority (McClellan CJ at CL and Hulme J) found that the sentences imposed by Sides DCJ were manifestly inadequate. The Court identified a number of discrete errors contributing to this outcome. These included the sentencing judge's acceptance that Kumar had provided valuable assistance to authorities, which was disputed; an excessive discount applied for that supposed assistance; a failure to structure the sentences in a way that reflected the judge's own finding that the criminality of each offence was "a little below mid level"; and the making of counts 2 and 3 entirely concurrent without adequate justification. The judge's remark that the differences between the three offenders were "relatively minor" was also criticised.

The Court resentenced both Kumar and Feagaiga. The majority imposed significantly increased sentences with a greater degree of accumulation, resulting in an effective total of almost eleven years from August 2006, with a non-parole period of almost eight years. Hidden J agreed with the majority that the sentences were manifestly inadequate and that the Crown appeals should succeed. However, he disagreed on the degree of accumulation, taking the view that the sentencing judge had been entitled to give considerable weight to the respondents' subjective circumstances and rehabilitation prospects, and that parity with Babanour's sentence provided an additional reason for restraint. Hidden J would have imposed a lesser degree of accumulation, producing an aggregate of nine years with a six-year non-parole period.

Orders Made

  • Leave granted to Kumar to appeal; Kumar's appeal dismissed.
  • Crown appeal against sentences imposed on Kumar allowed; those sentences quashed.
  • Crown appeal against sentences imposed on Feagaiga allowed; those sentences quashed.
  • Sentences on the remaining six charges confirmed.
  • Orders directing release of both respondents to parole quashed.
  • Each of Kumar and Feagaiga resentenced as follows:
  • Supply of commercial quantity of ecstasy, 9 August 2006: non-parole period of 4 years 3 months, total term 5 years 6 months, commencing 30 August 2006.
  • Supply of commercial quantity of ecstasy, 16 August 2006: non-parole period of 4 years 6 months, total term 6 years, commencing 29 February 2008.
  • Supply of commercial quantity of ecstasy, 23 August 2006: non-parole period of 4 years 6 months, total term 6 years, commencing 30 August 2009.
  • Supply of commercial quantity of methylamphetamine, 30 August 2006: non-parole period of 3 years, total term 6 years, commencing 28 August 2011.
  • Effective total sentence: approximately 11 years, with a combined non-parole period of approximately 8 years, with parole eligibility from 28 August 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period of 10 years for supply of a commercial quantity of prohibited drugs sets a significant benchmark; sentences falling well below that range across multiple commercial quantity charges will be vulnerable to Crown appeal on manifest inadequacy grounds.
  • A sentencing judge's finding about the level of an offender's criminality must be consistently reflected in the structure and quantum of the sentences actually imposed; an internal inconsistency between stated findings and final orders can constitute a discrete error.
  • Discounts for assistance to authorities must be grounded in reliable evidence that the assistance was both genuine and of value; acceptance of such a discount without adequate evidentiary foundation may be treated as error on appeal.
  • Where an offender is sentenced alongside co-offenders, parity considerations do not operate as an absolute constraint on appellate resentencing, but they remain a relevant factor when assessing the appropriate degree of accumulation.
  • Hidden J's dissent on the accumulation question illustrates that even where manifest inadequacy is established, the proper extent of resentencing on appeal can be contested, with rehabilitation prospects and co-offender parity continuing to exert some moderating influence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (maximum penalties for drug supply by quantity category)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole periods, including 10 years for commercial quantity supply)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (conviction without further punishment)

Cases:
- The judgment refers to the sentence imposed on a co-offender, Babanour, which was relevant to the parity argument. No formal case citations were set out in the portions of the judgment provided.

Note: Special leave to appeal to the High Court was refused on 5 June 2009 (S23/2009 and S84/2009).