AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 4 February 2011

Fogg v Regina

[2011] NSWCCA 1

Drugs
CRIMINAL LAW SENTENCING SUPPLY OF METHYLAMPHETAMINE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Fogg v Regina [2011] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 4 February 2011
Judges: Simpson J, Blanch J, Garling J (Garling J delivered the principal judgment, with Simpson and Blanch JJ agreeing)

Background

The applicant pleaded guilty in the District Court to one charge of supplying methylamphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985. The charge arose from five separate sales to an undercover police operative over approximately three weeks in June and July 2008, involving quantities ranging from 0.03 grams to 3.5 grams.

The applicant was part of a family-run drug supply enterprise in the Cessnock area. His brother Raymond Fogg led the enterprise, and the applicant was found to have acted as second-in-command, coordinating transactions, sourcing drugs from Raymond, and using intermediaries to reduce Raymond's exposure to police detection. The applicant received modest financial returns, including a $200 weekly payment for TAB betting.

Frearson DCJ sentenced the applicant to 4 years and 8 months imprisonment with a non-parole period of 3 years and 6 months, commencing from the date of arrest. A 25 per cent discount was applied for the early guilty plea. The applicant sought leave to appeal, contending that the sentence was excessive on multiple grounds.

  • Whether the sentencing judge erred by placing the offence above the mid-range of objective seriousness
  • Whether the sentencing judge erroneously took into account aggravating features, including the applicant's role as second-in-command of an organised enterprise
  • Whether the sentencing judge failed to give adequate weight to a mitigating feature (specifically the unsophisticated and amateurish nature of the enterprise)
  • Whether the overall sentence was manifestly excessive

Decision

The Court rejected all five grounds of appeal and dismissed the application (leave having been granted).

On the question of objective seriousness, Garling J found no error in the sentencing judge's characterisation of the offence as above the mid-range. Although the quantities of drugs were small and the financial return modest, the applicant's role extended beyond simple street-level dealing. He operated within an organised enterprise, coordinated supplies from his brother, and used third parties to insulate Raymond Fogg from detection. These features legitimately elevated the objective gravity of the offending.

The Court found that the sentencing judge did not erroneously treat the applicant's role as second-in-command as an aggravating feature. This characterisation was supported by the agreed facts and was a proper basis for the sentencing assessment. There was also no error in the treatment of the enterprise's unsophisticated nature. The sentencing judge acknowledged that feature but was not required to treat it as a mitigating circumstance that reduced the sentence below what the applicant's conduct otherwise warranted.

On manifest excess, Garling J acknowledged that sentencing statistics showed this sentence fell at the high end of the range for supply of less than 30 grams. However, the Court emphasised that the relevant question is whether the sentence fell within the permissible range of the sentencing discretion, not whether it matched the statistical average. Given the organised, profit-motivated, and multi-occasion nature of the offending, and the applicant's extensive criminal history, the Court found no unreasonableness or injustice in the sentence. The applicant had not demonstrated that the sentence was "unreasonable or plainly unjust" or that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may legitimately place a drug supply offence above the mid-range of objective seriousness where the offender's role in an organised enterprise involves coordination, profit, and active steps to shield a more senior participant from detection, even if the quantities involved are small.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the unsophisticated nature of a criminal enterprise does not automatically operate as a mitigating factor, particularly where the offender's conduct was deliberate and profit-driven.
  • Judicial Commission sentencing statistics may indicate where a sentence falls within the range, but they do not, by themselves, establish that a sentence at the high end of that range is manifestly excessive; the permissible exercise of sentencing discretion remains the operative test.
  • No error arises from treating an offender's role as second-in-command of an organised drug supply enterprise as a factor aggravating objective seriousness, provided that characterisation is grounded in agreed or established facts.
  • Where an applicant leads no evidence on sentence regarding prospects of rehabilitation, remorse, or likelihood of reoffending, the sentencing court is left with little material to moderate the weight of an adverse criminal history spanning four decades.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- El-Ghourani v R [2009] NSWCCA 140
- Mirza v R [2007] NSWCCA 248
- Mulato v The Queen [2006] NSWCCA 282
- R v Bloomfield (1998) 44 NSWLR 734
- R v Hayek [2010] NSWCCA 139
- Stewart v R [2009] NSWCCA 152
- Vuni v The Queen [2006] NSWCCA 171