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Court of Criminal Appeal 8 April 2009

NASSAR, Athena Hope v R

[2009] NSWCCA 100

Drugs
CRIMINAL LAW SENTENCING LEAVE TO APPEAL AGAINST SENTENCES APPEAL AGAINST SEVERITY OF SENTENCES WHETHER SENTENCES MANIFESTLY EXCESSIVE LEAVE GRANTED AND APPEAL ALLOWED

Citation: NASSAR, Athena Hope v R [2009] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 8 April 2009
Judges: McClellan CJ at CL; Hall J; Harrison J

Background

The applicant, a 36-year-old woman, pleaded guilty in the Gosford District Court to four counts of drug supply offences. The offences involved the supply of MDMA and methylamphetamine, an offer to supply methylamphetamine, and knowing participation in the supply of 454 grams of cannabis leaf. Three further offences were taken into account on a Form 1 (a procedural mechanism by which additional offences are acknowledged at sentencing without separate conviction).

Police intercepted approximately 4,000 telephone calls over roughly ten weeks and found the applicant was using five mobile phones during that period. The sentencing judge, Nield DCJ, found the offences formed part of organised and planned criminal activity and imposed an overall sentence of five years with a non-parole period of three years.

The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive, arguing the sentencing judge's starting point was too high and that insufficient weight was given to her subjective circumstances. Those circumstances included no significant prior criminal history, good character references, remorse, a 50 per cent discount for early guilty plea and assistance to police, a history of childhood trauma and domestic abuse, and favourable prospects for rehabilitation.

  • Whether the sentencing judge set too high a starting point when fixing the sentences.
  • Whether the sentences were manifestly excessive in light of the applicant's substantial subjective case.
  • Whether the sentencing judge erred in the accumulation of sentences.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the starting point adopted by the sentencing judge was excessive. Hall J, with whom McClellan CJ at CL and Harrison J agreed, concluded that a lesser overall sentence was warranted in law.

All three judges acknowledged the seriousness of the offending. McClellan CJ at CL described the applicant's conduct as "premeditated business-like criminality," drawing on the Court's earlier remarks in Van Can HA v R, and noted that the scale of telephone interceptions demonstrated significant involvement in the drug trade. Even so, the Court was satisfied that the original sentences did not adequately reflect the substantial mitigating factors present.

The Court also found that the sentencing judge had erroneously accumulated the sentences. After restructuring the accumulation, the resulting overall effective sentence was four years, comprising a non-parole period of two years from 8 June 2008 and a balance of term of two further years.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentences imposed by Nield DCJ on 11 June 2008 quashed.
  • Applicant resentenced as follows:
  • Count 4: 1 year imprisonment, non-parole period of 8 months (8 June 2008 to 7 February 2009), balance of term 4 months (8 February 2009 to 7 June 2009).
  • Count 2: 1 year and 9 months imprisonment, non-parole period of 1 year and 1 month (8 December 2008 to 7 January 2010), balance of term 8 months (8 January 2010 to 7 September 2010).
  • Count 3: 1 year and 9 months imprisonment, non-parole period of 1 year and 1 month (8 March 2009 to 7 April 2010), balance of term 8 months (8 April 2010 to 7 December 2010).
  • Count 1: 2 years and 6 months imprisonment, non-parole period of 6 months (8 December 2009 to 7 June 2010), balance of term 2 years (8 June 2010 to 7 June 2012); this sentence took into account the three Form 1 offences.
  • Overall effective sentence: 4 years from 8 June 2008 to 7 June 2012, with a non-parole period of 2 years.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an erroneously high starting point, even where significant discounts are applied, can render an overall sentence manifestly excessive and justify resentencing.
  • A 50 per cent combined discount for early guilty plea and substantial assistance to police was accepted without contest; the error lay in the baseline from which that discount was calculated.
  • Where offences are characterised as planned and business-like criminal conduct, that finding legitimately elevates objective seriousness, but it does not override the obligation to properly weigh substantial subjective mitigating factors.
  • Erroneous accumulation of sentences is a separate, independently reviewable error: the Court identified that the original structure of accumulation was itself a ground warranting resentencing.
  • In applying Van Can HA v R, the Court reiterated that a sentencing court may properly consider whether offences formed part of a pattern of premeditated criminality, even when sentencing only for the charged offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Van Can HA v R [2008] NSWCCA 141
- Braithwaite v R [2005] NSWCCA 451
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- McDonald v R [1994] FCA 956; (1994) 71 A Crim R 370
- Morgan (1993) 70 A Crim R 368
- R v Hayes [2001] NSWCCA 358
- R v Rushby [1977] 1 NSWLR 594
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704