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Court of Criminal Appeal 29 April 2009

Stephen Leslie Newton v R

[2009] NSWCCA 128

Drugs
CRIMINAL LAW SENTENCE RELEVANT FACTORS ERROR AS TO MAXIMUM PENALTY SLIP IN EXPRESSION BY JUDGE PARITY

Citation: Stephen Leslie Newton v R [2009] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): Grove J, Howie J, RA Hulme J (RA Hulme J delivering the principal judgment)

Background

The appellant was convicted of ongoing supply of a prohibited drug for financial or material reward under the Drug Misuse and Trafficking Act 1985. He and a co-offender conducted a weekday drug supply run as part of a larger syndicate operating in Sydney's inner west, selling cocaine and heroin in small quantities to an undercover police operative on eight occasions between September and October 2007. The total drug weight across those transactions was 1.41 grams, with each sale netting $80.

The appellant was 35 years old at the time of the offences and had no prior criminal record. Favourable factors included his emotional immaturity, remorse, good rehabilitation prospects, and the fact that he had voluntarily withdrawn from the criminal enterprise approximately two months before his arrest.

The District Court sentenced him to 1 year and 8 months imprisonment with a non-parole period of 12 months. His co-offender, Vulaono, had been sentenced earlier to 18 months with a non-parole period of 6 months. The appellant sought leave to appeal on two grounds: unjustifiable sentencing disparity with his co-offender, and the sentencing judge's misstatement of the applicable maximum penalty.

  • Whether the sentencing judge's erroneous reference to a maximum penalty of 25 years (rather than the correct 20 years under s 25A(1) of the Drug Misuse and Trafficking Act 1985) constituted a material error vitiating the sentence.
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a "serious and unjustifiable disparity" warranting appellate intervention.

Decision

On the maximum penalty ground, the Court found that the sentencing judge's reference to a 25-year maximum was an inadvertent misstatement rather than a substantive error affecting the sentence. Two features supported this conclusion. First, the judge had correctly stated the maximum when sentencing the co-offender two months earlier. Second, the Crown's solicitor had correctly stated the maximum at the outset of the appellant's sentencing proceedings. The Court was satisfied it was most unlikely the judge actually applied the wrong figure.

The Court also observed that the sentence ultimately imposed, approximately one-twelfth of the correct 20-year maximum, was plainly appropriate for an offence assessed as falling in the low range of objective seriousness. Any error in the misstatement therefore had no material bearing on the outcome.

On the parity ground, the Court acknowledged that the appellant received a longer sentence and a longer non-parole period than his co-offender. However, the Court found the disparity was justified by the marked difference in age between the two men. Vulaono's youth was a legitimately weighty mitigating factor that the sentencing judge was entitled to treat as distinguishing him from the older appellant. The appellant's voluntary cessation of supply activity was taken into account in his favour, but it did not compel a sentence equal to or lesser than that imposed on the younger co-offender.

The Court also noted several features of the offending itself. The s 25A offence was designed to address persistent supply where small quantities do not reflect the true level of criminality, so the modest individual quantities were of limited weight. The fact that drugs were sold to an undercover operative rather than entering the community was a relevant consideration, but of minimal significance: the appellant intended for the drugs to reach the community, and their interception was no credit to him.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's misstatement of the maximum penalty does not automatically vitiate a sentence. The Court of Criminal Appeal confirmed that such an error must have materially affected the sentence before it will ground a successful appeal.
  • Where context makes clear a misstatement was inadvertent, including because the correct figure had been stated in related proceedings and repeated by counsel at the hearing, the error is unlikely to be treated as material.
  • Under s 25A of the Drug Misuse and Trafficking Act 1985, the ongoing supply offence was created to address persistent supply conduct. Small quantities supplied on each individual occasion are therefore not the primary measure of objective seriousness.
  • Disparity in sentencing between co-offenders does not constitute a "serious and unjustifiable disparity" where a legitimate factor, such as a marked difference in age, accounts for the difference.
  • In dismissing the parity ground, the Court affirmed that a favourable mitigating factor available to one co-offender (voluntary cessation) does not automatically entitle another co-offender to an identical or lesser sentence, particularly where other distinguishing factors exist.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases
- Douglas v R [2006] NSWCCA 94
- Hudson v R [2009] NSWCCA 59
- Lowe v The Queen (1994) 154 CLR 606
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Burns [2007] NSWCCA 228
- R v Chan [1999] NSWCCA 103
- R v Giang [2005] NSWCCA 387
- R v Hoon [2000] NSWCCA 137
- R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
- R v Rushby [1999] NSWCCA 104
- R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
- R v Swan [2006] NSWCCA 47
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Smith v R [2007] NSWCCA 138
- Tuifa v R [2008] NSWCCA 224