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Court of Criminal Appeal 11 November 2009

Cicciarello v Regina

[2009] NSWCCA 272

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG SUPPLY OBJECTIVE CRIMINALITY OF THE OFFENCE AGGRAVATING FACTOR WHETHER DEALING FOR FINANCIAL GAIN

Citation: Cicciarello v Regina [2009] NSWCCA 272
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2009
Judge(s): Allsop P, Fullerton J, McCallum J

Background

The appellant pleaded guilty in the District Court to two offences: supplying not less than a commercial quantity of methylamphetamine (390.31 grams of "Ice") between February and April 2007, and possessing an unlicensed firearm. The drug supply involved a series of controlled purchases by an undercover police officer, as well as intercepted telephone conversations revealing further supply arrangements.

The sentencing judge in the District Court assessed the drug supply offence as falling in the mid-range of objective seriousness. Two aggravating factors contributed to that assessment: that the offence was committed for financial gain, and that it involved a series of criminal acts. The appellant was sentenced to a total term of seven and a half years, with a non-parole period of five years.

The appellant sought leave to appeal against the sentences, arguing that both aggravating factors had been applied in error.

  • Whether the sentencing judge erred in treating the drug supply as committed "for financial gain" when the proceeds were used to fund the appellant's own drug addiction.
  • Whether the sentencing judge erred in treating the series of criminal acts as an aggravating factor, given that same series of acts formed the basis for the more serious commercial quantity charge in the first place.
  • Whether those errors warranted quashing the sentence and re-sentencing to a lesser term.

Decision

On the financial gain issue, the Court found that the sentencing judge had accepted evidence that the proceeds of the supply went directly to fund the appellant's own drug addiction. In those circumstances, characterising the supply as dealing "for financial gain" within the meaning of the aggravating factors framework was an error. The Court drew a distinction between supply motivated by personal profit and supply undertaken to sustain an addiction, treating them as materially different in terms of culpability.

On the series of criminal acts issue, the Court held that the sentencing judge had fallen into double counting. The series of transactions across the relevant period was the very conduct that elevated the charge to one of supplying a commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Taking that same series of acts as a separate aggravating factor on top of the more serious charge effectively punished the appellant twice for the same conduct. The Court cited Tadrosse [2005] NSWCCA 145 as authority consistent with that prohibition.

Taken together, the two errors meant the mid-range assessment of objective seriousness could not stand. The Court concluded that a less severe sentence was warranted in law. In re-sentencing, the Court adopted the approach proposed by the appellant's counsel at the original hearing, which the Crown did not oppose once the errors were established. Both sentences were quashed and replaced with a reduced sentence.

Orders Made

  • Time for the appellant to give notice of intention to appeal extended to 2 July 2009.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Sorby DCJ on 22 August 2008 quashed and replaced as follows:
  • Count one (drug supply): non-parole period of three years commencing 12 October 2007, concluding 11 October 2010; balance of term of one and a half years concluding 11 April 2012.
  • Count two (unlicensed firearm): fixed term of 12 months commencing 12 April 2007, expiring 11 April 2008.

Key Takeaways

  • Supplying drugs to fund one's own addiction is not the same as supplying for "financial gain" as an aggravating factor; where a sentencing court accepts that proceeds went to support the offender's addiction, applying that aggravating factor constitutes error.
  • Under the prohibition against double counting, a series of criminal acts that forms the basis for a more serious charge cannot also be treated as a separate aggravating factor at sentencing; doing so inflates the assessed seriousness of the offence without proper justification.
  • Where two aggravating factors are each applied in error, the cumulative effect on the objective seriousness assessment may be sufficient to justify intervention on appeal and the imposition of a less severe sentence.
  • The Court of Criminal Appeal re-sentenced the appellant itself rather than remitting the matter, adopting the sentence proposed by defence counsel at the original hearing once the Crown conceded the errors were established.
  • Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which lists a "series of criminal acts" as an aggravating factor, must be applied with care to avoid double counting when the series of acts is also the foundation for the charge itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)
- Firearms Act 1996 (NSW), ss 7A(1), 65(3)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
- Way [2004] NSWCA 131; 60 NSWLR 168
- Bowden [2009] NSWCCA 45
- Day (1998) 100 A Crim R 275