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24
Court of Criminal Appeal 17 December 2010

Locke v R

[2010] NSWCCA 296

Also reported as (2010) 207 A Crim R 34
Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE COMMERCIAL SUPPLY OF ECSTASY YOUTH ERROR IN ASSESSMENT OF ROLE OF OFFENDER TOTALITY PRINCIPLE

Citation: Locke v R [2010] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judges: Simpson J, Hoeben J, RA Hulme J

Background

The applicant was a young man aged 19 at the time of the offences, who participated in a drug distribution network operating on the Central Coast of New South Wales. He was primarily involved in street-level distribution of MDMA (ecstasy), frequently working jointly with a co-offender and operating from a hotel in Toukley. He sourced drugs from others within the network and at times used runners to assist with distribution.

The applicant pleaded guilty to four offences under the Drugs Misuse and Trafficking Act 1985: ongoing supply of MDMA, supply of more than an indictable quantity, and two counts of supply of not less than a commercial quantity. The offences involved supplying a total of several thousand MDMA tablets across multiple transactions, the majority of which were made to undercover police operatives.

In the District Court, Judge King SC sentenced the applicant to a total term of 11 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge erred in his treatment of the applicant's previous convictions
  • Whether the judge erred in assessing the applicant's rehabilitation prospects
  • Whether youth was properly treated as a mitigating factor
  • Whether the fact that drugs were supplied to undercover police officers was a mitigating circumstance
  • Whether the judge erred in assessing the applicant's role within the offending
  • Whether the judge erred in assessing the objective seriousness of the offences
  • Whether the judge's reasons for the aggravating and mitigating factors he took into account were adequate
  • Whether the totality principle was correctly applied, resulting in an overall sentence that was manifestly excessive

Decision

The Court of Criminal Appeal found that errors had been made in the sentencing exercise and that a less severe sentence was warranted. The Court granted leave to appeal and allowed the appeal.

One significant error concerned the assessment of objective seriousness. The sentencing judge had found each commercial quantity offence to be "at least at the high end of the mid-range." The Court of Criminal Appeal treated this finding as equivalent to "the high end of the mid-range," effectively accepting the substance of that characterisation while removing the upward qualification implied by "at least."

The Court also identified error in the assessment of the applicant's role and in the application of the totality principle (the requirement that the overall sentence reflect the totality of the offending without being crushing or disproportionate). Taking into account the applicant's youth, his pleas of guilty, his rehabilitation prospects, and the other subjective factors in his favour, the Court concluded that the individual sentences for the commercial supply offences, and the degree of accumulation between sentences, were both excessive.

The Court restructured the sentences. It confirmed the 3-year fixed term for the ongoing supply offence and the 4-year fixed term for the indictable quantity offence. It reduced both commercial quantity sentences and adjusted the accumulation periods, resulting in a total term of 9 years with a non-parole component of 5 years and 6 months, compared with the original 11 years and 6 months with a 7 years and 6 months non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence for ongoing supply (3 to 25 April 2008): fixed term of 3 years from 1 October 2008, expiring 30 September 2011 (confirmed)
  • Supply of indictable quantity (22 April to 29 June 2008): fixed term of 4 years from 1 April 2009, expiring 31 March 2013
  • Supply of commercial quantity (14 August 2008): non-parole period of 4 years and balance of term of 2 years, commencing 1 October 2009, non-parole period expiring 30 September 2013, total term expiring 30 September 2015
  • Supply of commercial quantity (21 May to 24 July 2008): non-parole period of 4 years and balance of term of 3 years 6 months, commencing 1 April 2010, non-parole period expiring 31 March 2014, total term expiring 30 September 2017
  • Total term: 9 years with a non-parole component of 5 years and 6 months

Key Takeaways

  • The Court of Criminal Appeal reduced a total sentence from 11 years 6 months (non-parole 7 years 6 months) to 9 years (non-parole 5 years 6 months), finding that errors in the assessment of objective seriousness, the applicant's role, and the application of the totality principle had resulted in an excessive sentence.
  • A sentencing judge's characterisation of an offence as "at least at the high end of the mid-range" of objective seriousness carries an upward implication that the Court of Criminal Appeal treated with caution, applying the finding as one of "the high end of the mid-range" only.
  • Youth, pleas of guilty, and rehabilitation prospects each operated as mitigating factors capable of justifying departure below the standard non-parole period prescribed for commercial quantity drug supply offences, even where those offences are assessed as objectively serious.
  • Under the totality principle, where multiple sentences are imposed for related drug supply offences, the degree of accumulation between individual sentences must be calibrated so that the overall sentence is not disproportionate to the totality of the offending.
  • This decision was one of four related judgments arising from the same Central Coast drug distribution network, with the Court of Criminal Appeal noting that no parity grounds were raised and dealing with each applicant separately.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A of Part 4
- Criminal Appeal Act 1912 (NSW)

Cases
- Braithwaite v Regina [2005] NSWCCA 451
- DBW v Regina [2007] NSWCCA 236
- Georgopolous v R [2010] NSWCCA 246
- Mulato v R [2006] NSWCCA 282
- R v GDP (1991) 53 A Crim R 112
- R v Hearne [2001] NSWCCA 37
- R v Kama [2000] NSWCCA 23
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v McEvoy [2010] NSWCCA 110
- R v Wilson [2005] NSWCCA 20
- Regina v Chan [1999] NSWCCA 103
- Regina v Taylor [2005] NSWCCA 242
- Regina v Way [2004] NSWCCA 131
- Sivell v R [2009] NSWCCA 286
- McKellar v R [2010] NSWCCA 295
- O'Brien v R [2010] NSWCCA 297
- Ellis v R [2010] NSWCCA 298