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Court of Criminal Appeal 24 February 2010

FITZPATRICK, Sharon Lee v R

[2010] NSWCCA 26

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE NO ERROR FOUND LEAVE TO APPEAL REFUSED.

Citation: FITZPATRICK, Sharon Lee v R [2010] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 24 February 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The applicant pleaded guilty in the Sydney District Court to two serious drug supply offences involving methylamphetamine. The first offence, in May 2007 at Bathurst, involved the supply of 24.2 grams of methylamphetamine (just under five times the prescribed indictable quantity). The second offence, committed in October 2007 while the applicant was on bail for the first, involved 51 separate acts of supply from her home over approximately two weeks.

Frearson DCJ sentenced the applicant to a total of 5 years and 4 months imprisonment, comprising a non-parole period of 3 years and 10 months and a balance of term of 18 months. The sentencing judge found the applicant's antecedents troubling, including drug-related convictions stretching back to 1990, and concluded her moral culpability was high to very high.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was excessive on two grounds.

  • Whether the sentencing judge erred by failing to give sufficient mitigating weight to the applicant's drug addiction from a young age.
  • Whether the sentencing judge erred by failing to make a sufficient downward adjustment to the non-parole period for "special circumstances," after having found that special circumstances existed.

Decision

Ground 1: Drug addiction as mitigation. Harrison J found no error in the sentencing judge's approach. His Honour had acknowledged the applicant's disadvantaged background and accepted it as some explanation for her conduct, but had properly concluded that it did not reduce the objective gravity of the offences. The sentencing judge was entitled to find that the applicant's moral culpability remained high, and his treatment of the addiction evidence did not constitute appealable error.

Ground 2: Special circumstances adjustment. Harrison J noted that the sentencing judge had found special circumstances based on the accumulation of sentences and the need for drug counselling and supervision on release. His Honour increased the parole period by approximately 12.5 per cent above the statutory ratio. The Court of Criminal Appeal found this adjustment fell within the range of permissible discretionary outcomes, particularly given the sentencing judge's concurrent finding that the applicant had poor prospects of rehabilitation and was likely to re-offend. The non-parole period could not be described as manifestly excessive.

Leave to appeal. While Harrison J proposed formally granting leave and dismissing the appeal, McClellan CJ at CL and Howie J went further: they declined to grant leave at all. Their Honours observed that the overall sentence was in fact lenient given the totality of the applicant's criminality, and that there was never any prospect of this Court reducing it. They issued a pointed observation that applications of this character, brought where the overall sentence barely reflects the totality of the offending, are entirely without merit.

Orders Made

  • Leave to appeal refused (per McClellan CJ at CL and Howie J, forming the majority position on outcome).

(Note: Harrison J proposed orders granting leave and dismissing the appeal, but the joint judgment of McClellan CJ at CL and Howie J refused leave, and that refusal constitutes the operative order of the Court.)

Key Takeaways

  • A sentencing court is entitled to treat a disadvantaged background and drug addiction as partial explanation for offending without treating those factors as significantly reducing the offender's moral culpability, particularly where the offending is serious and sustained.
  • Where a sentencing judge finds special circumstances, the size of the adjustment to the statutory non-parole ratio remains a highly discretionary matter. The Court of Criminal Appeal will be slow to intervene unless the resulting non-parole period is manifestly excessive or inadequate.
  • The Court of Criminal Appeal confirmed the principle from cases such as R v Cramp and Clarke v R that a modest departure from the statutory ratio is not necessarily insufficient, especially where the sentencing judge has found poor rehabilitation prospects.
  • In assessing whether to intervene on a severity appeal, the Court considers the totality of the sentence against the totality of the criminality. Where the overall sentence is lenient, there is no basis for reduction even if technical error in the structure of individual components could be demonstrated.
  • McClellan CJ at CL and Howie J used this decision to caution against the bringing of unmeritorious sentence appeals where the overall sentence is already lenient relative to the offending.

Legislation and Cases Referenced

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

Cases:
- Clarke v R [2009] NSWCCA 49
- House v The King (1936) 55 CLR 499
- R v Cramp [2004] NSWCCA 264
- R v El-Hayek (2004) 144 A Crim R 90
- R v P [2004] NSWCCA 218
- R v Simpson (2001) 53 NSWLR 704
- R v Sutton [2004] NSWCCA 225
- SS v R; JC v R [2009] NSWCCA 114