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Court of Criminal Appeal 11 February 2010

Yaghi v R

[2010] NSWCCA 2

Drugs
CRIMINAL LAW SENTENCE SENTENCING PROCEDURE APPROACH TO SENTENCING PROCESS GENERALLY PROCEDURAL FAIRNESS

Citation: Yaghi v R [2010] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 11 February 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The applicant was sentenced in the District Court at Penrith in December 2008 for three serious drug offences: knowingly taking part in the manufacture of a commercial quantity of methylamphetamine, possession of a precursor chemical intended for use in drug manufacture, and supplying not less than the commercial quantity of pseudoephedrine. The offences arose from a police search of a rural property at Berkshire Park, where a clandestine laboratory had been set up in a garden shed, along with significant quantities of drugs, precursor chemicals, and manufacturing equipment found throughout the house and outbuildings.

The applicant lived at the property with family members and claimed he had rented the shed to a third party, whose name he refused to disclose. The agreed statement of facts recorded that the applicant was aware that approximately 900 grams of methylamphetamine was being manufactured in the shed and that he had permitted the equipment and chemicals to be stored there. He was sentenced to a total effective term of six years with a non-parole period of four years.

The applicant sought leave to appeal against sentence, raising two remaining grounds after abandoning two others. Both grounds centred on the sentencing judge's conduct during the hearing, specifically the judge's expression of suspicion about the applicant's true role in the offending and whether that suspicion affected the ultimate sentence.

  • Whether the sentencing judge erred by allowing a suspicion about the applicant's role to influence the sentence, in a manner that took into account matters outside the agreed statement of facts.
  • Whether the sentencing judge's decision to modify a previously indicated view on the non-parole period, after raising his suspicions during submissions, constituted a denial of procedural fairness or an error in the sentencing process.

Decision

The Court of Criminal Appeal found no merit in either ground of appeal. On the first ground, the Court accepted that the sentencing judge had expressed suspicion that the applicant's role in the offending was greater than what appeared in the agreed facts. However, the Court was not persuaded that this suspicion actually caused the judge to sentence on a different factual basis, or to take into account matters adverse to the applicant that were not properly before him.

On the second ground, the Court noted that the judge had, during the hearing, indicated a tentative and relatively generous view about the non-parole period. After reconsidering the matter during the luncheon adjournment, the judge informed counsel that he had modified this view, giving the applicant's counsel an opportunity to make further submissions. The Court characterised this as proper procedural fairness, not a breach of it.

The Court drew on the principle, articulated in R v Howard, that a trial judge is entitled to put propositions during argument and to modify those propositions in light of further submissions or consideration. The applicant bore the onus of establishing that the judge should not be taken at his word when he stated the final sentence was not affected by his expressed suspicions. The Court found that onus had not been discharged.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is entitled to raise tentative views during submissions and then modify those views, provided counsel is informed and given an opportunity to respond before the modified approach is adopted.
  • No error arises merely because a judge expresses suspicion about an offender's role during sentencing submissions, provided the ultimate sentence is determined only on the facts properly established before the court.
  • The applicant bears the onus of demonstrating that a sentencing judge's expressed suspicions actually affected the sentence, not merely that the suspicions were voiced.
  • Authorities concerning the need for procedural fairness when sentencing on a different factual basis from agreed facts (such as FV v R and R v Uzabeaga) do not apply where the judge ultimately sentences on the agreed facts without departing from them.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a judge who alerts counsel to a change in thinking and invites further submissions is acting consistently with procedural fairness, not in breach of it.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4

Cases
- Fairbairn v Regina [2006] NSWCCA 337; 165 A Crim R 434
- FV v R [2006] NSWCCA 237
- Johnson v Johnson (2000) 201 CLR 488
- Pearce v R (1998) 194 CLR 610
- Queen v De Simoni (1981) 147 CLR 383
- R v Gu [2006] NSWCCA 104
- R v House [2005] NSWCCA 88
- R v Howard [2004] NSWCCA 348
- R v Kearns [2003] NSWCCA 367
- R v Uzabeaga [2000] NSWCCA 381; 119 A Crim R 452
- Regina v JRB [2006] NSWCCA 371