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Court of Criminal Appeal 31 March 2010

Lorraway v R

[2010] NSWCCA 46

DrugsDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Lorraway v R [2010] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 31 March 2010
Judge(s): McClellan CJ at CL; Howie J; Harrison J

Background

The applicant was sentenced in the District Court on a combination of domestic violence offences (dealt with on appeal from the Local Court) and four drug supply offences to which he pleaded guilty. The most serious drug offence was the supply of not less than the commercial quantity of methylamphetamine, involving 1,005 tablets weighing 259.2 grams, with a purity of less than 1%. The supply occurred at a Byron Bay car park following a series of transactions with undercover police that had begun at Nimbin several weeks earlier.

For the commercial quantity supply (count 4), the District Court imposed a non-parole period of four and a half years with a balance of term of two and a half years, giving a head sentence of seven years. Sentences on the remaining drug counts and domestic violence matters were structured to run concurrently, resulting in a total effective non-parole period of approximately four years and nine months.

The applicant sought leave to appeal against the sentence on count 4 only.

  • Whether the low quantity and low purity of the drug the subject of count 4 mitigated the seriousness of the offence sufficiently to reduce the sentence below that imposed
  • Whether the sentencing judge erred in failing to properly take into account the pre-sentence custody the applicant had served

Decision

The Court granted leave to appeal but dismissed the appeal. McClellan CJ at CL, with whom Howie J and Harrison J agreed, found no error in the sentencing judge's approach to either ground.

On the question of purity and quantity, the Court held that although the methylamphetamine in the tablets was of very low purity (less than 1%), this did not make the offending substantially less serious. The Court noted that the applicant was operating at a commercial level, had negotiated to supply 1,000 tablets, and had represented to undercover police that the product was of good quality. The low purity did not negate the commercial nature and scale of the enterprise.

On the pre-sentence custody ground, the Court accepted that the sentencing judge had been aware the applicant had been in custody since his arrest on 21 August 2008. His Honour had delayed the commencement date of the drug sentences to ensure the applicant served an appropriate period referable to the domestic violence matters. While the Court noted this approach was technically incorrect (sentences should ordinarily commence on the date of arrest), it was not persuaded that the sentencing judge had failed to give appropriate credit for the time already served. The ground was rejected.

The Court also observed that the sentencing structure had, in fact, conferred a significant benefit on the applicant, because sentences on separate and distinct offences (including the other drug counts) were subsumed within the sentence for count 4. A separate, cumulative term for at least one of those counts would have been open. Even if error had been established, restructuring the sentences would not have produced a materially lower overall result having regard to the totality of the applicant's criminality.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Low purity of a drug the subject of a commercial quantity supply charge does not, without more, reduce the seriousness of the offending where the accused was operating at a commercial scale and represented the product as being of good quality.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing exercise for drug supply offences must consider the full context of the enterprise, not merely the chemical composition of the drug seized.
  • Where a sentencing judge delays the commencement of drug sentences to reflect pre-sentence custody served on associated matters, that approach is technically irregular but will not necessarily constitute appealable error if the overall period in custody is adequately accounted for.
  • Concurrent sentencing across multiple discrete offences may amount to a concession in favour of the offender; had error been established on count 4, the Court indicated it would have considered whether restructuring was required to reflect total criminality.
  • A comparison with sentences imposed in other cases will not establish error unless the sentence under review is shown to be excessive, not merely different from outcomes in cases with their own distinct facts.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)

Cases:
- Anderson v R [2008] NSWCCA 211
- Do, Van Nghiem v R [2008] NSWCCA 34
- Hockey v R [2006] NSWCCA 146
- Martinelli v R [2009] NSWCCA 175
- Mulato v R [2006] NSWCA 282
- R v Barker [2009] NSWCCA 225
- R v Blair [2005] NSWCCA 78; 152 A Crim R 462
- R v Deng [2005] NSWCCA 430
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v Mendez (2005) 155 A Crim R 241
- R v Shi [2004] NSWCCA 135
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Sivell v R [2009] NSWCCA 286