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Court of Criminal Appeal 17 December 2010

Ellis v R

[2010] NSWCCA 298

Also reported as 206 A Crim R 266
Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE COMMERCIAL SUPPLY OF ECSTASY RELEVANCE OF EVIDENCE OF GOOD CHARACTER YOUTH GOOD PROSPECTS OF REHABILITATION

Citation: Ellis v R [2010] NSWCCA 298
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 and 20 at sentencing. He was a street-level distributor within a drug supply network operating on the Central Coast of New South Wales, primarily supplying MDMA (ecstasy) tablets, often in concert with another offender. He had no prior criminal convictions.

The applicant was convicted of three offences under the Drugs Misuse and Trafficking Act 1985: one count of supplying more than the indictable quantity of MDMA across a series of transactions, and two counts of supplying not less than the commercial quantity of MDMA (125 grams being the commercial threshold). The commercial quantity offences involved supplying a total of approximately 2,700 tablets to undercover police operatives and others over several months in 2008.

In the District Court, King DCJ sentenced the applicant to an aggregate term of 10 years and 6 months, with a non-parole period of 6 years and 6 months. The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive, with particular complaints about the treatment of his youth, good character, and rehabilitation prospects.

  • Whether the sentencing judge erred in assessing the objective seriousness of the commercial quantity supply offences
  • Whether the judge properly applied the standard non-parole period of 10 years applicable to commercial drug supply offences under the Crimes (Sentencing Procedure) Act 1999
  • Whether the judge adequately accounted for the applicant's youth in setting the total terms of the sentences, not merely the non-parole periods
  • Whether the evidence of good character and successful rehabilitation warranted greater weight in the sentencing exercise
  • Whether the overall sentences were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentences imposed in the District Court were impermissibly excessive. The court confirmed the fixed-term sentence for the indictable (non-commercial) supply offence but quashed and re-imposed the sentences for the two commercial quantity offences.

A central finding concerned the treatment of the applicant's youth. The Court held that the applicant's young age was relevant to the setting of the total term of each sentence, not merely to the length of the non-parole period. The sentencing judge had only taken youth into account when finding special circumstances to reduce the non-parole period, which the Court of Criminal Appeal treated as an error. Reducing the non-parole period alone, without a corresponding reduction in the total term, fails to give youth its full mitigating effect.

The Court also recognised the strength of the applicant's subjective case. He had demonstrated successful rehabilitation between his arrest and sentencing, and his prospects for further rehabilitation were described as most promising, warranting significant weight. While the offences were acknowledged as serious, these mitigating factors, combined with the youthfulness error, justified resentencing.

On resentencing, the Court reduced the total aggregate term from 10 years 6 months to 8 years 6 months, with a non-parole period of 5 years. The finding of special circumstances (which allows the balance of term after the non-parole period to exceed the standard one-third ratio) was maintained for the commercial supply offences.

Orders Made

  • Application for leave to appeal granted.
  • Appeal allowed.
  • The sentence for supply prohibited drug (8 June to 20 September 2008): fixed term of 2 years 6 months from 17 September 2009, expiring 16 March 2012, confirmed.
  • Supply commercial quantity (14 August 2008): non-parole period of 4 years plus balance of term of 3 years, commencing 17 March 2010; non-parole period expires 16 March 2014, total term expires 16 March 2017.
  • Supply commercial quantity (23 April to 24 July 2008): non-parole period of 4 years plus balance of term of 3 years 6 months, commencing 17 September 2010; eligible for parole 16 September 2014, total term expires 16 March 2018.
  • Total sentence: 8 years 6 months with a non-parole component of 5 years.

Key Takeaways

  • Youth must be taken into account when setting the total term of a sentence, not only when adjusting the non-parole period. Treating youth solely as a basis for finding special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not give it its full mitigating effect on the overall sentence.
  • Evidence of genuine rehabilitation between arrest and sentence can carry significant weight, particularly for young offenders with no prior criminal history and strong prospects for further rehabilitation.
  • Where a sentencing judge limits the mitigating effect of a relevant factor such as youth to the non-parole period alone, that approach may constitute an error capable of vitiating the sentence on appeal.
  • The Court of Criminal Appeal confirmed the finding of special circumstances for the commercial supply offences, preserving the extended balance of term on resentencing.
  • In reducing the aggregate sentence from 10 years 6 months to 8 years 6 months, the Court treated the combination of errors as sufficient to render the original sentences manifestly excessive, even where the offences involved repeated commercial-scale drug supply.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) and Division 1A of Part 4 (standard non-parole periods)
- Bankruptcy Act 1966 (Cth)

Cases
- Dunn v R [2010] NSWCCA 128
- Hutton v R [2008] NSWCCA 99
- Majid v R [2010] NSWCCA 121
- McIvor v R [2010] NSWCCA 7
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Pfeiffer v R [2009] NSWCCA 145
- R v Baker [2000] NSWCCA 85
- R v Barlow [2010] NSWCCA 215
- R v BCC [2006] NSWCCA 130
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Jamieson Vincent [2006] NSWCCA 276
- R v JRD [2007] NSWCCA 55
- R v Kennedy [2000] NSWCCA 527
- R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
- R v McEvoy [2010] NSWCCA 110
- R v Smith [2006] NSWCCA 129
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ryan v The Queen (2001) 206 CLR 267
- SKA v R; R v SKA [2009] NSWCCA 186
- Sorbello v R [2006] NSWCCA 225
- Wong v The Queen [2001] HCA 64; 207 CLR 584