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Court of Criminal Appeal 17 December 2010

O'Brien v R

[2010] NSWCCA 297

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE COMMERCIAL SUPPLY OF ECSTASY ERROR IN ASSESSMENT OF REMORSE TOTALITY PRINCIPLE EXCESSIVE ACCUMULATION OF SENTENCES

Citation: O'Brien v R [2010] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judge(s): Simpson J, Hoeben J, RA Hulme J (Hulme J delivering the principal judgment)

Background

The applicant was a mid-level participant in a drug distribution network operating on the Central Coast of New South Wales. He sourced MDMA (ecstasy) tablets from his older brother and supplied them to street-level distributors and, on two occasions, to undercover police operatives. His role was described by the sentencing judge as senior: he was the sole link between the bulk supplier and a broadening chain of sub-distributors.

The applicant was arrested in October 2008 and sentenced in the District Court in October 2009. He was convicted of one count of supplying a prohibited drug and three counts of supplying not less than the commercial quantity of MDMA. The total quantity involved across the commercial supply offences exceeded 2,000 tablets.

The District Court imposed an aggregate sentence of 12 years 6 months, with a non-parole period of 8 years 6 months. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred in assessing remorse by failing to give appropriate weight to material in a psychological report, where the applicant had affirmed the truth of the history provided to the psychologist
  • Whether the judge erred in assessing the applicant's prospects of rehabilitation
  • Whether the judge erred in the treatment of the applicant's previous convictions as an aggravating factor
  • Whether the fact that two of the supply offences involved sales to undercover police operatives (rather than to actual drug users) was a mitigating factor
  • Whether the overall accumulation of individual sentences was excessive, resulting in a total sentence that was manifestly excessive, having regard to the totality principle

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach to several matters, the most significant being the application of the totality principle. The totality principle requires a sentencing court, when imposing multiple consecutive sentences, to stand back and assess whether the combined sentence is a just and appropriate response to the total criminality involved. The Court found that the degree of accumulation imposed in the District Court was excessive and rendered the total sentence manifestly excessive.

On remorse, the Court accepted that the sentencing judge had not given sufficient weight to material in the psychological report. The applicant had given evidence affirming the truth of the history he provided to the psychologist, which meant that material was available and relevant to the assessment of remorse and rehabilitation prospects.

On the question of whether supply to undercover police constituted a mitigating factor, the Court considered that this circumstance carried limited but some weight: no actual drug user was harmed by those transactions, which distinguished them to a degree from supply into the community, though it did not fundamentally alter the seriousness of the offending.

The Court confirmed the three-year fixed term for the least serious offence but quashed and re-imposed the three commercial supply sentences. The overall term was reduced to 9 years 6 months, with a non-parole period of 6 years, representing a meaningful reduction in the degree of accumulation while still reflecting the objective seriousness of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence for supply of a prohibited drug (1 October 2008): confirmed as a fixed term of 3 years, commencing 1 October 2008 and expiring 30 September 2011
  • Supply commercial quantity (23 May to 27 September 2008): non-parole period of 3 years 6 months, balance of term 2 years 6 months, commencing 1 April 2009; total term expiring 31 March 2015
  • Supply commercial quantity (21 May to 24 July 2008): non-parole period of 4 years 6 months, balance of term 3 years 6 months, commencing 1 October 2009; total term expiring 30 September 2017
  • Supply commercial quantity (14 August 2008): non-parole period of 4 years 6 months, balance of term 3 years 6 months, commencing 1 April 2010; eligible for parole 30 September 2014; total term expiring 31 March 2018
  • Overall term: 9 years 6 months with a non-parole component of 6 years

Key Takeaways

  • Excessive accumulation of consecutive sentences can render an overall sentence manifestly excessive, even where each individual sentence is within range; the totality principle requires the sentencing court to assess the combined effect as a whole.
  • Where an offender affirms the truth of a history provided to a psychologist, the contents of the resulting psychological report are available for use in assessing subjective matters such as remorse and rehabilitation prospects.
  • Supply of prohibited drugs to undercover police operatives, rather than to actual consumers, carries some mitigatory weight because no harm flows to drug users from those transactions, though the Court treated this as a limited consideration only.
  • The standard non-parole period of 10 years for commercial drug supply offences under the Crimes (Sentencing Procedure) Act 1999 operates as a benchmark rather than a starting point; significant departures are available where subjective circumstances, including youth and immaturity, warrant it.
  • In reducing the sentence, the Court confirmed the District Court's findings on objective seriousness and did not disturb the assessment that the three commercial supply offences fell at the high end of the mid-range.

Legislation and Cases Referenced

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

Cases:
- Regina v Chan [1999] NSWCCA 103
- Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
- McKellar v R [2010] NSWCCA 295
- Locke v R [2010] NSWCCA 296
- Ellis v R [2010] NSWCCA 298