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Court of Criminal Appeal 21 April 2008

R v Kazzi

[2008] NSWCCA 77

Drugs

Citation: R v Kazzi [2008] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 21 April 2008
Judges: Mason P, James J, Hoeben J

Background

The respondent pleaded guilty in the District Court to seven drug supply offences involving cocaine and methylamphetamine, ranging from straightforward supply through to supply of large commercial quantities. The offences involved transactions with multiple co-offenders and the storage of nearly three kilograms of methylamphetamine at a rented unit. The quantities involved were substantial: two of the offences concerned drugs at or above the "large commercial quantity" threshold (one kilogram), which carries a maximum penalty of life imprisonment.

Judge Williams of the District Court sentenced the respondent to a structured series of fully concurrent terms. The overall effect was a head sentence of eight years with a minimum non-parole period of six years. The Crown considered those sentences manifestly inadequate and appealed under section 5D of the Criminal Appeal Act.

  • Whether the sentences imposed by the District Court were manifestly inadequate for drug supply offences of this scale and seriousness
  • Whether the sentencing judge gave appropriate weight to the standard non-parole periods applicable to commercial and large commercial quantity supply offences
  • Whether the degree of concurrency applied to the sentences adequately reflected the totality of the respondent's offending
  • What sentences should be substituted on re-sentencing, having regard to the principle that sentences imposed on a successful Crown appeal will generally be towards the lower end of the available range

Decision

James J (with whom Mason P and Hoeben J agreed) found that the sentences were manifestly inadequate. The standard non-parole period for supplying not less than a commercial quantity of a prohibited drug is 10 years, and for large commercial quantity offences it is 15 years. The head sentences of five and six years respectively, with non-parole periods of three and four years, fell dramatically short of these benchmarks and were not justified by the subjective circumstances of the case.

The Court also found that the sentencing judge's application of full concurrency across all seven offences failed to reflect the true extent and criminality of the respondent's conduct. The offences were distinct transactions occurring over a period of time, involving different drugs, different co-offenders, and very large quantities of controlled substances.

On re-sentencing, the Court acknowledged the established principle that sentences imposed following a successful Crown appeal are generally less than those a sentencing court should have imposed at first instance, and will sit towards the lower end of the available range. James J described the substituted sentences as lenient by that measure. Fixed terms (without a parole period) were imposed for some offences because, in the cascade of cumulative sentences, any balance of term would otherwise have been subsumed by lengthier concurrent sentences.

Orders Made

  • Crown appeal allowed
  • Respondent re-sentenced as follows:
  • Offences 1, 3 and 6 (supply prohibited drug): fixed terms of 18 months each, commencing 23 February 2006, fully concurrent
  • Offence 2 (supply commercial quantity, methylamphetamine): fixed term of 4 years commencing 23 February 2007
  • Offence 7 (supply commercial quantity, cocaine, nearly 1 kg): fixed term of 5 years commencing 23 February 2008
  • Offence 4 (supply large commercial quantity, cocaine, 2 kg): non-parole period of 7.5 years commencing 23 February 2009, balance of term 2.5 years, expiring 22 February 2019
  • Offence 5 (supply large commercial quantity, methylamphetamine, 2.892 kg): non-parole period of 6.5 years commencing 23 February 2010, balance of term 3.5 years, expiring 22 February 2020
  • Overall head sentences totalling 14 years; earliest parole eligibility 22 August 2016

Key Takeaways

  • The District Court's sentences of five and six years for commercial and large commercial quantity drug supply were found to be manifestly inadequate when measured against the standard non-parole periods of 10 and 15 years respectively under the Drug Misuse and Trafficking Act.
  • Full concurrency across multiple discrete drug supply offences, each involving different parties and transactions, may not adequately reflect the overall criminality of an offender's conduct.
  • On a successful Crown appeal, the Court of Criminal Appeal confirmed that re-sentenced terms will generally fall towards the lower end of the available range, and will typically be less than what should have been imposed at first instance.
  • Where a cascade of cumulative sentences would render a balance of term practically meaningless, fixed-term sentences (without non-parole periods) may be the appropriate mechanism for some offences.
  • Standard non-parole periods function as a significant reference point in sentencing for commercial and large commercial quantity drug supply, and departures from those benchmarks require justification commensurate with the scale of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW), s 5D
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 25(2), 32, 33, Sch 1

Cases:
- Markarian v R (2005) 79 ALJR 1048
- Pearce v The Queen (1998) 194 CLR 610
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168