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District Court 22 August 2008

R v Simon MUROE

[2008] NSWDC 178

Drugs
CRIMINAL LAW JUDGMENT SEVERITY APPEAL CROWN APPEAL DEATH IRRELEVANT IN SENTENCING BREACHES OF CONDITIONAL LIBERTY

Citation: R v Simon MUROE [2008] NSWDC 178
Court: District Court of New South Wales
Date: 22 August 2008
Judge(s): Berman SC DCJ

Background

The offender, then aged 25, was in a relationship with a 15-year-old girl who was living with him in October 2005. On 9 October 2005, while the offender should have been serving a sentence of periodic detention, he used heroin and Murelax tablets in her presence. At her request, he supplied her with both drugs, which she then took.

Tragically, the girl died as a result. The offender was charged with, and pleaded guilty to, supplying a prohibited drug to a child under the age of 16, an offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 18 years imprisonment. He was not charged with manslaughter.

The Local Court Magistrate imposed a sentence of 20 months imprisonment with a non-parole period of 15 months. Both the offender (arguing the sentence was too severe) and the Crown (arguing it was too lenient) appealed to the District Court.

  • Whether the victim's death could be taken into account as an aggravating factor in sentencing for the drug supply offence
  • Whether the Magistrate's sentence was manifestly excessive (the offender's appeal)
  • Whether the Magistrate's sentence was manifestly inadequate (the Crown's appeal)
  • The correct approach to the relationship between a court's jurisdictional limit and the maximum statutory penalty when sentencing

Decision

The court addressed first and most fundamentally whether the victim's death could influence sentencing. Applying the principle established in De Simoni v The Queen (1981) 147 CLR 383, the court held that taking the death into account would effectively sentence the offender for manslaughter, an offence carrying a maximum penalty of 25 years that he had never been charged with. The Crown ultimately conceded, correctly as a matter of law, that the death was irrelevant to the sentencing exercise. The court noted some concern about how the prosecution had been handled, given that defence counsel had drafted the statement of facts that included the death, and that the Crown had initially tendered that material in the Local Court.

The court set out the proper approach to the distinction between a jurisdictional limit and a maximum penalty. A sentencing court must first determine the appropriate penalty by reference to the statutory maximum, treating that maximum as a yardstick reserved for the worst category of offence. Only then does the court consider whether the penalty provisionally determined falls within or exceeds the jurisdictional limit. If it exceeds the limit, the court imposes the limit; if it falls below, the court imposes the provisional penalty.

Applying those principles, and setting aside the victim's death entirely, the court found that the Magistrate's sentence of 20 months was neither too lenient nor excessive. The offence involved a single act of supply, made at the victim's request, and while serious, did not warrant the jurisdictional maximum. The court also declined to find special circumstances that would have extended the parole eligibility period, given the offender's prior failures to take advantage of leniency and his history of breaching conditions of liberty. The submission that a suspended sentence was appropriate was rejected outright, particularly as the offence itself was committed while the offender was subject to a suspended sentence.

Orders Made

  • Both the offender's severity appeal and the Crown's appeal against inadequacy of sentence are dismissed.
  • The Magistrate's sentence is confirmed: 20 months imprisonment with a non-parole period of 15 months, commencing 18 August 2008, with release to parole on 17 November 2009.

Key Takeaways

  • The District Court confirmed that, under the De Simoni principle, a sentencing court cannot treat a victim's death as an aggravating circumstance when the offender was charged only with supplying a prohibited drug: to do so would effectively punish for manslaughter, an offence not before the court.
  • A clear distinction exists between a jurisdictional limit and a maximum penalty: the sentencing court must first assess the appropriate sentence against the statutory maximum, then compare that figure to the jurisdictional limit, rather than treating the jurisdictional limit as the yardstick.
  • Where an offender has repeatedly breached conditions of conditional liberty, including committing the subject offence while subject to a suspended sentence, a further suspended sentence is unlikely to be appropriate.
  • In dismissing both appeals, the District Court confirmed that a sentence within range is neither increased nor reduced merely because the parties have each challenged it from opposite directions.
  • The court expressed concern about prosecution conduct where material relating to irrelevant and prejudicial matters was included in an agreed statement of facts and initially tendered in the Local Court, a concern acknowledged to be of significance to the victim's family.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- De Simoni v The Queen (1981) 147 CLR 383
- R v Ellis (1986) 6 NSWLR 603