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Court of Criminal Appeal 7 May 2009

Woodgate v R

[2009] NSWCCA 137

Also reported as 195 A Crim R 219
Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE SUPPLY LARGE COMMERCIAL QUANTITY MDMA NO ERROR DEMONSTRATED MAXIMUM PENALTY OF LIFE IMPRISONMENT FOURTEEN YEARS (TEN YEARS NON

Citation: Woodgate v R [2009] NSWCCA 137
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2009
Judge(s): Grove J (principal judgment), Buddin J, RA Hulme J

Background

The appellant pleaded guilty in the District Court to supplying a large commercial quantity of MDMA (ecstasy), an offence carrying a maximum penalty of life imprisonment. The quantity involved was substantial: approximately 43 kilograms of MDMA was found in a storage facility, with further quantities at residential premises, along with automated pill presses and other manufacturing equipment. A further offence of goods in custody reasonably suspected of being unlawfully obtained (involving cash of over $31,000) was taken into account on a Form 1 basis.

The sentencing judge (Charteris DCJ) imposed a total sentence of 14 years, comprising a non-parole period of 10 years and a balance term of 4 years. The standard non-parole period for the offence was 15 years. A Crown appeal asserting manifest inadequacy was abandoned before the hearing.

The appellant sought leave to appeal against the severity of the sentence on four grounds, including parity with a co-offender, the rejection of psychological evidence, the treatment of special circumstances, and manifest excess.

  • Whether the sentencing judge erred in rejecting psychological evidence and related submissions made on the appellant's behalf, given the appellant had not given evidence himself
  • Whether the principle of parity required a reduction in sentence, by comparison with the sentence imposed on a co-offender (Barton)
  • Whether the sentencing judge gave adequate weight to special circumstances in setting the non-parole period
  • Whether the total sentence of 14 years (10 years non-parole) was manifestly excessive

Decision

On the psychological evidence ground, the Court found no error in the sentencing judge's approach. The judge had accepted a limited factual history provided to a psychologist but declined to accept detailed claims of drug abuse and its consequences, noting the appellant had not given evidence and had offered only a bare denial of involvement when interviewed by police. The Court held it was open to the judge to approach the psychological material with caution and that no appellable error arose.

On parity, the Court rejected the comparison with co-offender Barton. Barton had been charged with an offence involving a vastly smaller quantity of drugs, and the factual bases of the two offences were not comparable. The Court also doubted the reasoning in R v Kerr [2003] NSWCCA 234 to the extent it might suggest parity applies where co-offenders are charged with materially different offences. The Court confirmed that the parity principle is not engaged where the offences themselves are substantially different in objective gravity.

Regarding special circumstances, the sentencing judge had expressly found their existence (including the appellant's lack of prior custody and a longstanding depressive condition) and reduced the non-parole period from 10 years 6 months to 10 years accordingly. The Court of Criminal Appeal found no error in the judge's exercise of discretion in setting the non-parole period and declined to intervene.

On manifest excess, the Court considered the sentence in light of the standard non-parole period of 15 years and the objective seriousness of the offending. The sentence of 14 years total with a 10-year non-parole period fell below both the standard non-parole period and the maximum. The Court found the sentence was not manifestly excessive and dismissed the appeal.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The parity principle does not require equalisation of sentences where co-offenders are charged with offences involving vastly different quantities of a prohibited substance; the offences themselves must be broadly comparable before parity becomes relevant.
  • In dismissing the appeal, the Court of Criminal Appeal doubted the reasoning in R v Kerr [2003] NSWCCA 234 insofar as it might extend the parity principle to situations involving materially different offences.
  • Where an appellant does not give evidence at sentencing and offers contradictory accounts to police, a sentencing judge acts within discretion in approaching psychological opinions based on unverified self-reporting with caution.
  • A modest reduction in the non-parole period from the default proportion can constitute an adequate reflection of special circumstances; the Court found no miscarriage of discretion where the judge expressly identified the circumstances and applied a measurable reduction.
  • A total sentence of 14 years (10 years non-parole) for supply of a large commercial quantity of MDMA, where the standard non-parole period is 15 years, was held not to be manifestly excessive on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Drug offences legislation providing for a maximum penalty of life imprisonment for supply of a large commercial quantity of MDMA (NSW)
- Standard non-parole period provisions (15 years for the relevant offence)

Cases cited:
- R v Kerr [2003] NSWCCA 234 (doubted)
- Power v The Queen (1974) 131 CLR 623
- R v Simpson (2001) 53 NSWLR 704
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Wong v The Queen (2001) 207 CLR 584
- R v Olbrich (1999) 199 CLR 270
- R v Way (2004) 60 NSWLR 168
- R v Thomson (2000) 49 NSWLR 383
- Holden v R [2008] NSWCCA 100
- Kauwenberghs v R [2008] NSWCCA 98
- Pham v R [2009] NSWCCA 25
- Mirza v R [2007] NSWCCA 248
- Various others as cited in the judgment