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Court of Criminal Appeal 19 June 2009

BIERMANN v R

[2009] NSWCCA 165

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE.

Citation: Biermann v R [2009] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 19 June 2009
Judge(s): Campbell JA, Latham J, Harrison J

Background

The appellant was a 26-year-old man who pleaded guilty in the Local Court to five counts of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985. Police executed a search warrant on his Surry Hills unit and found substantial quantities of MDMA, cocaine, methylamphetamine, ketamine, and other substances, along with cash, packaging materials, scales, and records consistent with commercial drug dealing.

The appellant had been employed in financial services for seven years before his arrest. He left the family home in 2006 after conflict with his parents over his drug use, which had escalated to around $250 per day in methamphetamine expenditure. He supplied drugs from his rented unit to fund his living costs, drug use, and repayments on a $120,000 loan his parents had guaranteed.

In the District Court, Judge Woods QC DCJ sentenced the appellant to an aggregate term of 9 years, comprising a non-parole period of 5 years with a balance of term of 4 years. The appellant then sought leave to appeal against that sentence, arguing it was manifestly excessive.

  • Whether the individual sentences imposed on each supply count were manifestly excessive by reference to comparable decisions of the Court of Criminal Appeal
  • Whether the aggregate sentence of 9 years was manifestly excessive
  • Whether the sentencing judge's approach to accumulating individual sentences involved a miscarriage of discretion
  • Whether the sentencing judge sufficiently reflected a finding of special circumstances in the sentence structure

Decision

The Court granted leave to appeal (the application was out of time but the Crown did not oppose the grant) and dismissed all appeals against sentence. Latham J, with whom Campbell JA and Harrison J agreed, found that the individual sentences and the aggregate sentence were not manifestly excessive.

The Court examined the objective gravity of the supply commercial quantity MDMA offence in some detail, noting that the sentencing judge had not explicitly placed it within the range indicated by the maximum penalty or referenced the 10-year standard non-parole period. Notwithstanding that methodological gap, the overall result was appropriate. The operation was plainly commercial, involving multiple drugs in significant quantities stored across three safes, packaging consistent with distribution, and written records of transactions.

On the subjective case, the Court acknowledged the appellant's prior good character, remorse, positive prison conduct, and drug counselling. However, it noted that drug addiction as a motivation for dealing attracts only limited weight, consistent with the principle stated in R v Henry (1999) 46 NSWLR 346. The appellant's emotional difficulties and addiction did not entitle him to leniency sufficient to reduce the sentences.

The Court found that the accumulation approach, although it produced the unusual result of a one-year non-parole period on the most serious individual charge (the commercial quantity count), did not infect the final aggregate. A non-parole period of 5 years and a balance of 4 years was "entirely appropriate" to the totality of the offending. The appellant's complaint about the exercise of the accumulation discretion amounted to a preference for a different result, not a demonstrated error of the House v The King variety.

Orders Made

  • Leave to appeal granted
  • Appeals against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's failure to explicitly benchmark against a standard non-parole period does not automatically render the resulting sentence appealable, provided the aggregate outcome is appropriate to the overall criminality.
  • Drug addiction as a motivation for supply offences carries, at most, limited mitigating weight; emotional stress at the time of offending similarly does not entitle an offender to leniency.
  • Where individual sentences are accumulated to produce an aggregate, the relevant question on appeal is whether the final aggregate and aggregate non-parole period are manifestly excessive. A complaint that the discretion to accumulate could have been exercised differently does not establish an error of the House v The King type.
  • The totality principle requires an aggregate non-parole period that genuinely reflects the criminality inherent across multiple offences; the circumstance that all charges arose from a single search warrant does not reduce the overall gravity of a sustained commercial dealing operation.
  • Strong subjective circumstances, including prior good character, remorse, and positive rehabilitation prospects, were acknowledged but did not displace the need for a substantial custodial sentence where the objective gravity of commercial drug supply across multiple substances was high.

Legislation and Cases Referenced

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

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v Henry (1999) 46 NSWLR 346
- Mitchell v R [2008] NSWCCA 192
- R v MacDonnell [2002] NSWCCA 34
- R v Hejazi [2003] NSWCCA 383
- R v Wheeler [2000] NSWCCA 34
- R v Jordan [2002] NSWCCA 228
- R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357
- R v Dang [2005] NSWCCA 430
- Stevens v Regina [2007] NSWCCA 252
- R v Franklin NSWCCA, 11 April 1997
- R v Thompson & Falconer [1999] NSWCCA 50
- R v Loh [2002] NSWCCA 23
- R v Shi [2004] NSWCCA 135
- R v Emanuel [2004] NSWCCA 267
- R v Attard [2004] NSWCCA 376
- Hutton v R [2008] NSWCCA 99
- R v Stankovic [2006] NSWCCA 229
- R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532