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23
Court of Criminal Appeal 16 August 2011

R v Achurch

[2011] NSWCCA 186

Also reported as (2011) 216 A Crim R 152
Drugs
CRIMINAL LAW CROWN APPEAL ON SENTENCE SUPPLY COMMERCIAL QUANTITY OF MDMA SUPPLY MDMA STANDARD NON PAROLE PERIOD OFFENCES

Citation: R v Achurch [2011] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 16 August 2011
Judges: Macfarlan JA, Johnson J, Garling J

Background

The respondent, a principal in a south-western Sydney drug supply enterprise, was convicted after trial of three offences: supplying MDMA (108.7 grams), supplying a commercial quantity of MDMA (270 grams), and supplying a large commercial quantity of methylamphetamine (2.6 kilograms, approximately two-and-a-half times the large commercial threshold). Telephone interceptions established that the respondent operated at the top of a supply chain, directing runners who collected drugs from him and returned the proceeds.

The respondent was sentenced in the District Court on 6 August 2010, more than two years after conviction. That delay arose from defence applications to gather evidence about the respondent's medical condition and his management in custody. The sentencing judge imposed a total effective non-parole period of six years with a balance of term of eight years.

The Crown appealed under s.5D of the Criminal Appeal Act 1912, contending the sentences were manifestly inadequate. The Court of Criminal Appeal allowed the appeal and resentenced the respondent.

  • Whether the sentencing judge failed to adequately determine the objective criminality of each offence, including where each fell within the range of objective seriousness
  • Whether the sentencing judge failed to give proper regard to the standard non-parole periods applicable to Counts 2 and 4
  • Whether excessive weight was given to the respondent's medical condition as a subjective mitigating factor
  • Whether the individual sentences, and the aggregate sentence, were manifestly inadequate
  • The extent to which the fact that drugs were not disseminated into the community (because supply was to undercover police) was properly relevant to sentence

Decision

The Court found multiple errors in the sentencing judge's approach. First, the judge failed to adequately assess where each offence sat on the spectrum of objective seriousness. The offences were serious: the respondent was the organising principal of the enterprise, the quantities involved were substantial, and the operation was sophisticated and commercial in nature.

Second, the Court held that the sentencing judge gave excessive weight to the respondent's medical condition. While a serious medical condition can be relevant to sentence, it cannot be permitted to overwhelm the objective gravity of the offences, particularly where those offences attract standard non-parole periods and carry very high maximum penalties. The subjective factors in this case were allowed to distort the sentencing exercise to a degree that was not warranted.

Third, the Court addressed the argument that the drugs were not disseminated into the community because they were supplied to an undercover police officer. The Court accepted this has some relevance, but held that its relevance is limited. The respondent's culpability was to be assessed primarily on what he intended and did, not on the circumstance that the drugs happened not to reach end users.

Finally, the Court confirmed that where an offence falls within the mid-range of objective seriousness and follows a conviction at trial, a sentencing judge must give proper attention to both the statutory maximum and the standard non-parole period as legislative benchmarks. The original sentence for Count 4 imposed a total sentence two years less than the standard non-parole period alone, which the Court characterised as a significant error resulting in manifest inadequacy.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court on 6 August 2010 quashed
  • On Count 1: fixed term of two years and three months, commencing 16 August 2006, expiring 15 November 2008 (unchanged in structure)
  • On Count 2: non-parole period of six years commencing 16 August 2007 and expiring 15 August 2013, with a balance of term of two years expiring 15 August 2015
  • On Count 4: non-parole period of 11 years commencing 16 August 2008 and expiring 15 August 2019, with a balance of term of five years expiring 15 August 2024
  • Respondent eligible for release on parole on 16 August 2019

Key Takeaways

  • Standard non-parole periods and statutory maximum penalties are legislative benchmarks that sentencing courts must genuinely engage with; where an offence falls in the mid-range of objective seriousness after a trial conviction, those benchmarks carry significant weight and cannot be displaced without proper justification.
  • A respondent's medical condition, while capable of constituting a mitigating factor, cannot be given such disproportionate weight that it overwhelms the objective seriousness of major drug supply offences.
  • The non-dissemination of drugs into the community (because supply was made to undercover police) carries only limited weight in mitigation; the respondent's culpability is assessed primarily by reference to what he intended and did.
  • In allowing a Crown appeal on manifest inadequacy, the Court of Criminal Appeal confirmed the principle that subjective factors must not be permitted to so dominate the sentencing exercise as to produce a sentence inconsistent with the gravity of the offending.
  • Garling J's additional observations emphasised that the difference between the original sentence and the resentenced term illustrated the practical importance of proper attention to standard non-parole periods by sentencing judges.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s.5D
- Drug Misuse and Trafficking Act 1985 (NSW), s.25(1) and s.25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Khoury v R [2011] NSWCCA 118
- R v Green; R v Quinn [2010] NSWCCA 313
- Fahs v R [2007] NSWCCA 26
- R v Sellars [2010] NSWCCA 133
- R v Knight [2007] NSWCCA 283; 176 A Crim R 338
- Hristovski v R [2010] NSWCCA 129
- R v Chan [1999] NSWCCA 103
- R v Gao [2007] NSWCCA 343
- Ly v R [2008] NSWCCA 262
- R v Anastasiou [2010] NSWCCA 100
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- R v Badanjak [2004] NSWCCA 395
- R v Dodd (1991) 57 A Crim R 349