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8
Court of Criminal Appeal 16 September 2009

McBETH v R

[2009] NSWCCA 235

Drugs
CRIMINAL LAW SENTENCING LEAVE TO APPEAL AGAINST SENTENCE SUPPLYING PROHIBITED DRUG FINDING OF SPECIAL CIRCUMSTANCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: McBeth v R [2009] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 16 September 2009
Judges: McClellan CJ at CL, Hidden J, McCallum J

Background

The applicant pleaded guilty in the District Court to two counts of supplying a prohibited drug and one count of supplying a commercial quantity of a prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985. The charges arose from a series of transactions between the applicant and an undercover police officer, negotiated at meetings in Moore Park and monitored under warrant. On arrest, police found over $29,000 in cash hidden behind a false wall in the applicant's apartment, along with electronic scales and multiple mobile phones.

The offences included supplying 99 ecstasy tablets, agreeing to supply two ounces of cocaine (which was not completed but still constituted supply under the Act), and supplying 1,863 ecstasy tablets at a total weight of 424.8 grams, well above the commercial quantity threshold. Four additional charges were taken into account on a Form 1.

The sentencing Judge (Marien DCJ) imposed a total effective sentence of a seven-year non-parole period and a total term of 11.5 years, with a finding of special circumstances to reduce the ratio of non-parole period to total sentence. The applicant sought leave to appeal on multiple grounds.

  • Whether the sentencing Judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing Judge gave adequate weight to the applicant's subjective circumstances, including his account of initial involvement to help a dying friend
  • Whether the overall sentence was manifestly excessive
  • Whether partial accumulation of the sentences was appropriate
  • Whether sentencing statistics showing the sentence was more severe than all comparable recorded cases indicated error
  • Whether the sentencing Judge placed undue weight on Crown submissions and commentary
  • Whether the finding against the applicant regarding the $29,000 in cash (the goods in custody charge) was contrary to the evidence

Decision

The Court of Criminal Appeal, with all three judges agreeing in reasons delivered by McCallum J, found no error in the sentencing Judge's approach to objective seriousness. The supply of a commercial quantity of ecstasy, in the context of a sustained undercover operation, multiple transactions, and sophisticated concealment of cash proceeds, supported the finding that the offending was serious.

On the subjective circumstances, the Court accepted the sentencing Judge had regard to the applicant's personal background and his explanation for his initial involvement. The account involving a friend with cancer seeking funds to return to Greece was a matter for the sentencing Judge to assess for credibility, and the Court declined to interfere with that assessment.

On manifest excess, the Court acknowledged that the sentence imposed on the third charge was more severe than any of the 51 comparable cases recorded by the Judicial Commission between February 2003 and June 2008. However, the Court applied the well-established principle from R v Bloomfield that statistics set no upper limit on the sentencing discretion. The upper limit is the statutory maximum penalty, not the highest recorded sentence in the statistics. Absent specific error by the sentencing Judge, the Court held it was not appropriate to substitute its own view.

The remaining grounds, including the complaint about Crown submissions and the challenge to the $29,000 forfeiture, were dismissed. The Court found the challenge to the DPP's role amounted to nothing more than a complaint that the Judge accepted Crown submissions over those of the defence. On the cash, the sentencing Judge's reasons for rejecting the applicant's innocent explanation were described as cogent and plainly open on the evidence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Sentencing statistics compiled by the Judicial Commission do not cap the sentencing discretion. The Court of Criminal Appeal confirmed that the upper limit of that discretion remains the statutory maximum, even where a sentence is more severe than all comparable recorded cases.
  • In dismissing the appeal, the Court reaffirmed that an appellate court will not intervene in the absence of identifiable error, regardless of how a sentence compares against statistical benchmarks.
  • A credibility finding made by a sentencing judge against an offender who gave evidence at sentence is a matter quintessentially within that judge's province and will not readily be disturbed on appeal.
  • The agreed supply of cocaine did not require completion of the transaction: under the Drug Misuse and Trafficking Act 1985, agreement to supply is itself sufficient to constitute the offence.
  • No error was established in the partial accumulation of sentences or in the finding of special circumstances, confirming the sentencing Judge's exercise of discretion was within acceptable bounds.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, table item 18
- Criminal Appeal Act 1912 (NSW), s 5
- Listening Devices Act 1984 (NSW)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Mulato [2006] NSWCCA 282
- R v Bloomfield (1998) 44 NSWLR 734
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Taouk (1992) 65 A Crim R 387
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Van Cuong Nguyen v R [2008] NSWCCA 322
- Weininger v R [2003] HCA 14; (2003) 196 ALR 451