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Court of Criminal Appeal 8 June 2010

D'Ambrosio v R

[2010] NSWCCA 120

Drugs
CRIMINAL LAW SENTENCE APPEAL DRUG OFFENCES DISCOUNT FOR ASSISTANCE.

Citation: D'Ambrosio v R [2010] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 8 June 2010
Judge(s): Handley AJA, Grove J, Hislop J

Background

The appellant pleaded guilty in the District Court to two counts of drug supply offences under the Drug Misuse and Trafficking Act 1985: supplying a commercial quantity of MDMA (ecstasy) over a six-month period, and knowingly taking part in the supply of cocaine. He also pleaded guilty in the Local Court to a charge of supplying methylamphetamine (ice), and was committed to the District Court for sentence on that matter.

Police had intercepted the appellant's mobile phone and conducted physical surveillance, revealing that he regularly sourced and supplied cocaine, cannabis, ecstasy, and ice over approximately six months. When his premises were searched, police found over 71 grams of MDMA tablets, two sets of scales, an electronic money counter, and other equipment.

The sentencing judge in the District Court imposed fully concurrent sentences, with the most significant being a five-year head sentence on the ecstasy count, reduced to a three-year non-parole period on account of special circumstances. The judge applied a one-sixth discount for the guilty plea on the two indictment counts and a 25 percent discount on the committal matter, together with a further 40 percent discount for assistance to authorities. The appellant, representing himself, sought leave to appeal on several grounds.

  • Whether the sentencing judge erred in assessing objective criminality by taking into account conduct suggesting a more serious offence (conspiracy to supply) rather than the actual charge (supply)
  • Whether factual findings relevant to objective criminality were required to be made beyond reasonable doubt, and whether the judge improperly relied on assumptions about the appellant's likely future conduct
  • Whether the 40 percent discount for assistance to authorities was inadequate given the nature of that assistance
  • Whether the sentences were manifestly excessive

Decision

On the objective criminality grounds, the Court found no error. The sentencing judge was entitled to take into account the full factual context, including evidence from phone interceptions about the appellant's attempts to source large quantities of MDMA, in assessing the seriousness of the supply offence. The Court rejected the suggestion that this amounted to sentencing for a more serious charge. The judge's finding that the offence fell in the middle range of objective seriousness, for an offence carrying a maximum of 20 years and a standard non-parole period of 10 years, was correct.

On the standard of proof ground, the Court confirmed the applicable principles: where facts are disputed and adverse to an offender, they must be proved beyond reasonable doubt; where facts are not in dispute, the criminal standard does not apply. Here, the key facts about the scale of the appellant's dealing were either admitted or undisputed. No error was established in the judge's approach.

Regarding the discount for assistance, the Court acknowledged the appellant's assistance was "exceptional" and of a very high order. The judge had applied a 40 percent discount for assistance which, combined with the guilty plea discount, produced an overall reduction of 50 percent on the head sentence for count one. The Court confirmed this calculation method was consistent with authority, specifically R v El Hani, and that a composite discount of 50 percent is generally regarded as appropriate for assistance of the very highest order. The Court found no basis to interfere with the sentencing judge's assessment of the weight to be given to the assistance.

On manifest excess, the Court rejected the submission that the sentences were too severe. It noted that bare statistics and general comparisons offer limited assistance, as sentencing is a discretionary exercise dependent on the particular facts. The concurrent structure of the sentences was noted as favourable to the appellant, and no error was apparent in any of the sentences imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A composite discount of 50 percent for a guilty plea and assistance to authorities represents the ceiling generally regarded as appropriate for assistance of the very highest order, consistent with R v El Hani [2004] NSWCCA 162.
  • Where an offender admits, or does not dispute, the factual basis for sentencing, the criminal standard of proof (beyond reasonable doubt) is not required before the sentencing court acts on those facts; that standard applies only to disputed facts that are adverse to the offender.
  • A sentencing judge does not err in taking into account the full factual context of an offence, including intercepted communications about the scale of dealing, when assessing objective criminality for a supply charge.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that sentencing involves a discretionary judgment, and that no single correct sentence exists; Markarian v R (2005) 228 CLR 357 was cited in support of this principle.
  • Concurrent sentences across multiple drug charges, while favourable to an offender, do not in themselves indicate error in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)

Cases:
- R v El Hani [2004] NSWCCA 162
- The Queen v Hoar (1981) 148 CLR 32
- R v Borkowski [2009] NSWCCA 102
- R v Sukkar [2007] NSWCCA 298
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357