Citation: Elmir v R [2009] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 17 February 2009
Judge(s): Tobias JA; James J; Price J
Background
The appellant pleaded guilty in the District Court to supplying a large commercial quantity of cocaine (not less than 1 kilogram) and perverting the course of justice. The cocaine supply charge arose from a controlled operation conducted by the NSW Crime Commission, in which the appellant received 1 kilogram of cocaine from a registered source and paid $160,000 in cash. The perverting the course of justice charge arose from the appellant fabricating a false account, blaming his brother for driving a vehicle during a separate drug-related police surveillance incident.
The sentencing judge, Ainslie-Wallace DCJ, imposed 12 years and 6 months imprisonment on the supply count (non-parole period of 8 years) and 6 years imprisonment on the perverting count (non-parole period of 4 years), with the sentences structured to run largely cumulatively from the date of arrest.
The appellant challenged both his conviction and his sentence before the Court of Criminal Appeal.
Legal Issues
- Whether the appellant's conviction was a miscarriage of justice because his guilty plea had been entered on the basis of a legal authority that was subsequently declared invalid by higher courts
- Whether the accumulation of sentences was just and appropriate in all the circumstances
- Whether the appellant's wife's serious medical condition, and its potential future impact on their children, constituted exceptional circumstances justifying a reduction or restructure of the sentence
- Whether the sentencing judge failed to give adequate weight to the wife's medical condition and the contingency of her future deterioration as part of the general subjective sentencing mix
Decision
Conviction appeal: The appellant argued that his guilty plea was undermined because a legal authority similar to the one that authorised the controlled operation in his case had later been declared invalid. The Court of Criminal Appeal rejected this argument. A guilty plea entered on the basis of a then-prevailing understanding of the law does not automatically become a miscarriage of justice when that understanding is later overturned. The Court found no basis to set aside the conviction.
Sentence accumulation: The Court found no error in the sentencing judge's decision to structure the sentences cumulatively. The two offences were distinct in nature and timing, and the accumulation was considered just and appropriate in the circumstances.
Exceptional circumstances: The appellant submitted that his wife's medical condition, and the risk she might not survive his non-parole period, constituted exceptional circumstances warranting a reduction in sentence. The sentencing judge had acknowledged the wife's illness but noted she was on medication, her condition was currently controlled, and she remained relatively well. The Court of Criminal Appeal agreed with that assessment and declined to treat the circumstances as exceptional.
General subjective mix: The appellant separately argued that the sentencing judge had failed to factor into the broader sentencing calculus the possibility of his wife's future deterioration and the consequent risk to the care of their younger children. The Court found no relevant error in her Honour's approach. Even if that contingency had been overlooked, the Court concluded that no sentence other than that imposed was warranted in law.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A guilty plea entered under a prevailing understanding of applicable law does not constitute a miscarriage of justice merely because that legal understanding is subsequently overturned by higher courts.
- The Court of Criminal Appeal confirmed that the accumulation of sentences across distinct offences is appropriate where the offences differ in nature and timing, and where cumulation reflects the overall criminality.
- Where a convicted person's spouse is ill but currently stable and receiving treatment, that circumstance does not automatically constitute the "exceptional circumstances" required to justify departure from an otherwise appropriate sentence.
- In dismissing both appeals, the Court underscored that the hardship suffered by third parties, including dependent children, is a relevant subjective factor but one that must be supported by evidence rather than speculation.
- No error was established in the sentencing judge's treatment of the subjective case, and the Court found that, even on the most favourable view of the overlooked contingency, no different sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
Cases:
- Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
- Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
- Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- Woods v R [2008] NSWCCA 83
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
- Sauer v R [2006] NSWCCA 81
- Various other NSW Court of Criminal Appeal authorities cited in the judgment