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Court of Criminal Appeal 30 November 2010

DAB v R; NJB v R

[2010] NSWCCA 275

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES SUPPLY PROHIBITED DRUG (ECSTASY) MANUFACTURE PROHIBITED DRUG (ECSTASY) CRIMINAL LAW

Citation: DAB v R; NJB v R [2010] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 30 November 2010
Judges: Macfarlan JA, Simpson J, Hall J

Background

Two brothers, referred to as DAB and NJB, pleaded guilty in the District Court at Lismore to offences involving the supply and manufacture of MDMA (ecstasy) in large quantities between September and November 2007. DAB faced the more serious charges, involving supply and manufacture of not less than the large commercial quantity of MDMA (above 500 grams), and asked the court to take into account an additional money laundering offence. NJB faced charges of supply and manufacture at the commercial quantity level (above 125 grams), along with one count of simple supply.

The facts, presented by agreed statement, disclosed that DAB was the primary operator of a substantial commercial drug enterprise, dealing in MDMA tablets across multiple transactions on at least eleven separate occasions. NJB played a less active role in the same enterprise.

The District Court sentenced DAB to concurrent terms of 12 years imprisonment with non-parole periods of 8 years on each count. NJB received concurrent terms of 9 years with non-parole periods of 5 years on the two more serious counts, plus a fixed term of 4 years on the simple supply count. Both brothers sought leave to appeal against the severity of those sentences, each pointing to specific errors in the sentencing process.

  • Whether the sentencing judge erred by adopting the same notional starting point for offences that reflected materially different levels of criminality
  • Whether the sentencing judge erred in the process of accumulation when imposing sentences for multiple offences
  • Whether the sentencing judge erred in assessing the objective seriousness of the individual offences
  • What use a sentencing court may properly make of subjective material that was not tested by oral evidence

Decision

The Court of Criminal Appeal identified errors in the sentencing process for both applicants and allowed both appeals. In relation to DAB, Simpson J (with Macfarlan JA agreeing) found that the sentencing judge had erred in treating the supply and manufacturing counts as though they warranted the same starting point, without adequately reflecting the distinct character and seriousness of each offence. The manufacturing offence and the supply offence engaged different statutory provisions with different maximum penalties and standard non-parole periods, and the sentencing exercise needed to treat them accordingly.

The Court also found error in the accumulation process. Where an offender is sentenced for multiple offences, the total sentence must reflect the overall criminality involved while remaining proportionate to that criminality. Simply imposing concurrent sentences at the maximum end of the range for each count, without turning properly to the question of how and to what extent terms should accumulate or overlap, produced a result that could not be sustained.

On NJB's appeal, Hall J (with Macfarlan JA agreeing, Simpson J dissenting) found similar errors, including an incorrect assessment of the objective seriousness of NJB's offences and a failure to adequately differentiate his lesser role from that of his brother. The Court concluded that the sentences imposed on NJB were excessive having regard to the proper application of sentencing principles to his individual circumstances and conduct.

The Court also addressed the use of subjective material that had not been the subject of oral evidence at sentencing. The judgment confirmed that such material can be considered, but its weight and reliability must be approached with care where it has not been tested.

Orders Made

DAB:
- Leave to appeal granted
- Original sentences quashed
- Count 4 (manufacturing): non-parole period of 4 years and 6 months commencing 21 November 2007, expiring 20 May 2012; balance of term of 3 years and 6 months expiring 20 November 2015
- Count 1 (supply, with additional offence taken into account): non-parole period of 6 years commencing 21 November 2008, expiring 20 November 2014; balance of term of 3 years expiring 20 November 2017

NJB (by majority):
- Leave to appeal granted
- Sentences on Counts 2 and 5 quashed
- Count 5 (manufacturing): non-parole period of 2 years and 6 months commencing 21 November 2007, expiring 20 May 2010; balance of term of 2 years and 6 months expiring 20 November 2012
- Count 2 (supply): non-parole period of 3 years and 6 months commencing 21 May 2008, expiring 20 November 2011; balance of term of 2 years and 6 months expiring 20 May 2014
- The District Court's sentence on Count 3 (fixed term of 4 years) remained concurrent with the new sentences

Key Takeaways

  • Sentences for separate offences must reflect the distinct levels of criminality attached to each charge, even where offences arise from the same criminal enterprise. Using the same notional starting point for offences that carry different maximum penalties and standard non-parole periods constitutes error.
  • The process of accumulation in multi-count sentencing requires careful and explicit reasoning. A sentencing court must turn its mind to how terms are to be accumulated or made concurrent, ensuring the aggregate reflects overall criminality without being disproportionate.
  • Where two co-offenders are sentenced together, the individual sentences must properly reflect the differing roles and degrees of participation of each person. A less active participant in a drug enterprise is not appropriately sentenced on the same basis as the principal operator.
  • Subjective material placed before a sentencing court that was not tested by oral evidence remains available for consideration, but the court must approach its weight and reliability with appropriate caution given it was not subject to cross-examination.
  • In allowing the appeals, the Court of Criminal Appeal imposed sentences with staggered, partially accumulating non-parole periods, reflecting the need to acknowledge the total criminality while giving proper weight to each distinct offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Mirza v R [2007] NSWCCA 248
- Monroe v R [2006] NSWCCA 350
- Munro v R [2006] NSWCCA 350
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Elfar [2003] NSWCCA 358
- R v McGourty [2002] NSWCCA 335
- R v O'Neill (1979) 2 NSWLR 582
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Truong v R [2006] NSWCCA 318
- Weininger v The Queen (2002) 77 ALJR 872
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Woodgate v R [2009] NSWCCA 137