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Court of Criminal Appeal 17 December 2010

McKellar v R

[2010] NSWCCA 295

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE COMMERCIAL SUPPLY OF ECSTASY TOTALITY PRINCIPLE EXCESSIVE ACCUMULATION OF SENTENCES SENTENCE MANIFESTLY EXCESSIVE

Citation: McKellar v R [2010] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judge(s): Simpson J, Hoeben J, RA Hulme J

Background

The applicant, a young man aged 20 at the time of the offences and 22 at sentencing, had been involved in a drug distribution network on the NSW Central Coast. He pleaded guilty to two offences under the Drugs Misuse and Trafficking Act 1985: supplying not less than the commercial quantity of MDMA (ecstasy) across 35 transactions between April and September 2008, involving at least 761 tablets (approximately 190 grams); and supplying a prohibited drug on 26 September 2008, when 63 tablets were found at his home during a search warrant. A proceeds of crime offence was taken into account on a Form 1.

In the District Court, Judge King SC sentenced the applicant to a fixed term of 18 months for the lesser supply offence and 5 years (with a 3-year non-parole period) for the commercial quantity offence, commencing after the first sentence expired. The total sentence was 6 years with a non-parole period of 4 years. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge applied the correct maximum penalty when sentencing for the commercial supply offence
  • Whether the sentencing judge erred in rejecting parts of a psychological report, given contradictions between that report and the agreed facts, even though the applicant had given evidence affirming the history in the report
  • Whether the degree of accumulation of the two sentences was excessive and failed to comply with the totality principle (that is, whether the overall sentence adequately reflected the totality of the criminality without resulting in a crushing outcome)

Decision

On the maximum penalty question, the Court found no error by the sentencing judge. The correct maximum of 20 years under section 25(2) of the Drugs Misuse and Trafficking Act 1985 had been applied.

On the psychological report, the Court held that the sentencing judge committed no error in declining to accept parts of the report. Although the applicant gave evidence affirming the history recorded in it, there were obvious and material contradictions between that history and the agreed facts. A sentencing court is entitled to reject material that is plainly inconsistent with the agreed factual basis.

The Court upheld the ground concerning the totality principle. It accepted that the individual sentences were not manifestly excessive in themselves, describing them as relatively modest and within the range of sound discretionary judgment. The problem was the degree of accumulation. Because the second offence (the single supply on 26 September 2008) substantially overlapped with the criminality already reflected in the commercial quantity offence, the overall sentence of 6 years with a 4-year non-parole period was excessive. The Court reduced the overall sentence by bringing forward the commencement of the commercial quantity sentence by 9 months, rather than disturbing the individual penalties.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The 18-month fixed term for the supply offence on 26 September 2008 (commencing 26 February 2010, expiring 25 August 2011) confirmed
  • The sentence for the commercial quantity offence quashed; in lieu, a sentence of 3 years non-parole period plus 2 years balance of term imposed, commencing 26 May 2010, with parole eligibility from 25 May 2013 and total expiry on 25 May 2015
  • Total sentence: 5 years and 3 months, with a non-parole component of 3 years and 3 months

Key Takeaways

  • A sentencing court is entitled to reject material in a psychological report, even where the offender gives evidence affirming that material, if it is obviously contradicted by the agreed facts before the court.
  • Where two offences substantially overlap in criminality (here, a series of supply transactions "rolled up" into a commercial quantity charge, and a discrete supply at the very end of that same dealing activity), the totality principle requires that the degree of accumulation of sentences reflect that overlap rather than treat the offences as entirely separate.
  • The individual sentences for each offence need not themselves be manifestly excessive for an appeal against severity to succeed: an error in the overall sentencing structure, arising from excessive accumulation, can independently justify intervention.
  • Upholding the appeal on totality grounds, the Court of Criminal Appeal adjusted the commencement date of the longer sentence rather than reducing the individual penalties, illustrating that the remedy for a totality error may be structural rather than a reduction in any single term.
  • Under section 25(2) of the Drugs Misuse and Trafficking Act 1985, the commercial quantity offence of supplying MDMA carries a maximum of 20 years' imprisonment and a standard non-parole period of 10 years; the prescribed commercial quantity for MDMA is 125 grams and the large commercial quantity is 500 grams.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), sections 25(1) and 25(2)
- Crimes Act 1900 (NSW), section 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4
- Criminal Appeal Act 1912 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Minehan v R [2010] NSWCCA 140
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- Locke v R [2010] NSWCCA 296
- O'Brien v R [2010] NSWCCA 297
- Ellis v R [2010] NSWCCA 298