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Court of Criminal Appeal 21 December 2010

Furia v R

[2010] NSWCCA 326

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE FACT FINDING BY SENTENCING JUDGE ASSESSMENT OF OBJECTIVE SERIOUSNESS PARITY

Citation: Furia v R [2010] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 21 December 2010
Judge(s): Giles JA, Hislop J, RA Hulme J (Hulme J writing)

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of not less than the large commercial quantity of the precursor drug 1-phenyl-2-propanone (P2P), an offence under the Drugs Misuse and Trafficking Act 1985. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The applicant's involvement centred on arranging, together with another person, the sale of 15 litres of P2P to a third-party buyer, with the two men agreeing to share the profit equally.

At the time of the offence, the applicant was 25 years old, had no prior criminal history, and had in fact been accepted into the NSW Police Force, with his entry to the Police Academy scheduled just days after his arrest. The sentencing judge in the District Court described the applicant's subjective case as "strong," noting his good character, psychological evidence, and the significant personal consequences of the prosecution.

District Court Judge Marien sentenced the applicant to a total term of 16 years' imprisonment with a non-parole period of 8 years. The applicant sought leave to appeal on eight grounds, primarily challenging factual findings by the sentencing judge, the assessment of objective seriousness, a claimed parity issue, and the overall length of the sentence as manifestly excessive.

  • Whether the sentencing judge erred in rejecting the applicant's evidence that he intended to inform police about the drug manufacturing activity before entering the Police Academy
  • Whether the judge erred in his assessment of the objective seriousness of the offence
  • Whether a parity issue arose by reference to sentences imposed on co-offenders
  • Whether the total sentence of 16 years was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal found no error in the sentencing judge's rejection of the applicant's claim that he had intended to tip off police. The court noted there was ample basis for the judge to prefer the Crown's account over the applicant's sworn evidence, and that finding was not disturbed.

On objective seriousness, the court found the offence was properly assessed as mid-range. The court noted that while the applicant was not involved in the drug manufacturing operation itself, he played an active and willing role in facilitating the supply of a large commercial quantity of a drug precursor for financial gain.

The court upheld the appeal on the ground that the total sentence of 16 years was manifestly excessive. Hulme J found the starting point of 19 to 20 years (before discount for the guilty plea) was excessively high for a mid-range offence accompanied by a strong subjective case. Applying a discount consistent with what the sentencing judge had already allowed, the court reduced the total term to 13 years 2 months. The non-parole period of 8 years was, if anything, described as lenient given the standard non-parole period of 15 years, and it was maintained.

The court also confirmed that the non-publication order on the applicant's name was not justified, given his evidence about his reasons for offending had not been accepted as truthful.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu, the applicant sentenced to imprisonment with a non-parole period of 8 years and a balance of term of 5 years 2 months, commencing 17 February 2009, with eligibility for parole on 16 February 2017 and total term expiring 16 April 2022

Key Takeaways

  • A sentencing judge's rejection of an applicant's sworn evidence will not be disturbed on appeal where there is adequate basis in the record for that finding.
  • The Court of Criminal Appeal confirmed that a total sentence of 16 years for a mid-range large commercial drug supply offence, combined with a strong subjective case, was manifestly excessive, warranting reduction to 13 years 2 months.
  • Where a guilty plea is entered only days before trial (rather than on arraignment), a discount closer to 10 per cent is appropriate; the court noted that discounts exceeding approximately 15 per cent are difficult to justify even for a plea on arraignment, following R v Borkowski.
  • Non-publication orders on an offender's name are not justified merely by the fact that the offender gave a particular account of their motivation: the order is only supportable if that account was accepted as truthful.
  • In adjusting an excessive total term, the court may maintain an existing non-parole period rather than recalibrate it, particularly where that period already represents a significant departure from the prescribed standard non-parole period.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2), s 33(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Pt 4

Cases
- Hamieh v R [2007] NSWCCA 277
- Jimmy v R [2010] NSWCCA 60
- Ly v R [2008] NSWCCA 262
- McBeth v R [2009] NSWCCA 235
- Mulato v R [2006] NSWCCA 282
- Pham v R [2009] NSWCCA 25
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Kalpaxis [2001] NSWCCA 119; 122 A Crim R 320
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383