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Court of Criminal Appeal 5 May 2009

Garner v R

[2009] NSWCCA 79

DrugsFirearms & weapons

Citation: Garner v R [2009] NSWCCA 79
Court: New South Wales Court of Criminal Appeal
Date: 5 May 2009
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The appellant was a drug supplier who had pleaded guilty in the District Court to four offences of supplying a prohibited drug and one offence of possessing an unregistered firearm. The supply offences involved methylamphetamine and MDMA (ecstasy). A number of additional minor drug and goods-in-custody offences were also taken into account.

The offending occurred across three separate police stops of the appellant's vehicle between December 2006 and August 2007. On each occasion police located drugs, and on the first occasion they also found drug paraphernalia, cash, and the unregistered firearm. The appellant had prior convictions for drug supply and committed further offences while on bail.

The sentencing judge in the District Court found the appellant was a determined drug supplier, rejected his claim that he only supplied to a small circle of friends, and imposed an aggregate sentence with a total head sentence of four years nine months, with fixed terms and a non-parole period totalling three years.

  • Whether the sentence imposed for offence 2 (supply of 38.09 grams of methylamphetamine) was manifestly excessive
  • Whether the sentencing judge had erred in characterising the appellant's motive as "sheer greed" rather than considering whether supply to fund a personal addiction was a relevant mitigating factor
  • Whether a less severe aggregate sentence would have been warranted to reflect the total criminality across all offences
  • Whether special circumstances justified a variation from the standard non-parole period ratio

Decision

The Court of Criminal Appeal, with James J delivering the principal judgment (McClellan CJ at CL and Buddin J agreeing), concluded that the sentence for offence 2 was manifestly excessive. The key driver of that conclusion was the application of the principle that the aggregate of sentences must reflect total criminality without over-punishing an offender.

The Court accepted that, while there were aspects of the sentencing that may have been lenient in other respects (particularly in making the sentences for offences 1 and 5 fully concurrent with each other), any such leniency was more than offset by the excessive weight given to offence 2. The Court was not persuaded that no less severe aggregate sentence would have been warranted.

On re-sentencing for offence 2, James J assessed an appropriate head sentence at four and a half years before discount. Applying the same 40 per cent combined discount (for guilty plea and assistance to authorities) as the sentencing judge had adopted, this produced a head sentence of two years eight months. The Court found special circumstances in the same circumstances identified by the sentencing judge, and divided the sentence so that the non-parole period and fixed terms bore the same proportion to total head sentences as the original structure.

The Court did not need to resolve a separate question of principle raised in supplementary written submissions by the parties, as the appeal was decided on the manifest excessiveness ground alone.

Orders Made

  • Leave granted to appeal against the sentence for offence 2
  • Appeal against the sentence for offence 2 allowed
  • Sentence imposed by the sentencing judge for offence 2 quashed
  • In lieu thereof, the appellant sentenced to a non-parole period of one year four months commencing 29 August 2008 and expiring 28 December 2009, with a balance of term of one year four months
  • Direction that the appellant be released on parole on 28 December 2009

Key Takeaways

  • The Court of Criminal Appeal confirmed that, where a sentence for one individual offence is manifestly excessive, the appellate court may re-sentence on that count even if other individual sentences within the aggregate were arguably lenient, provided the overall result remains proportionate to total criminality.
  • A combined discount of 40 per cent for guilty plea and assistance to authorities was upheld as a valid approach where both factors were present, without the court needing to disaggregate them separately.
  • Characterising an offender's motive was relevant to objective seriousness; the sentencing judge's finding of "sheer greed" was not itself overturned, but the weight given to that finding in fixing the length of the sentence for offence 2 contributed to the manifest excess.
  • Where an offender is found to be a determined supplier with prior convictions and who reoffended on bail, those factors properly aggravate sentence, but they do not displace the requirement that the aggregate remain proportionate across all offences sentenced together.
  • In re-sentencing, the Court of Criminal Appeal maintained the same non-parole-to-total-sentence ratio as the original structure, reflecting the continued finding of special circumstances and consistency across the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Drug Misuse and Trafficking Act (NSW), ss 10(1), 25(1)
- Firearms Act (NSW), s 36(1)
- Crimes Act (NSW), s 527C(1)(a)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146
- R v Bacon (2000) 120 A Crim R 28
- R v Brown [2001] NSWCCA 367
- R v Connell [2003] NSWCCA 90
- R v Decandia (NSWCCA, 8 July 1994)
- R v Fogg [2002] NSWCCA 395
- R v Hofer [2001] NSWCCA 544
- R v Meres; R v Dineen [2003] NSWCCA 193
- R v Smiroldo (2000) 112 A Crim R 47