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Court of Criminal Appeal 11 November 2011

Ayshow v R

[2011] NSWCCA 240

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE PLEAS OF GUILTY POSSESSION OF PISTOL NO ERROR ESTABLISHED APPEAL DISMISSED

Citation: Ayshow v R [2011] NSWCCA 240
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2011
Judges: Bathurst CJ, James J, Johnson J

Background

The applicant pleaded guilty in the Parramatta District Court to three indictable offences arising from events on 21 July 2008: supplying a commercial quantity of ecstasy (194 grams), supplying methylamphetamine (94 grams), and possessing a loaded 9mm pistol without authorisation. Seven additional offences were placed on a Form 1 schedule to be taken into account on the principal count, including possession of a Taser-like stun device, knowingly dealing in proceeds of crime totalling $50,060.85, and possessing instructions for manufacturing ecstasy.

The offences came to light when police from the Middle Eastern Organised Crime Squad, acting on intercepted phone calls, stopped the applicant's vehicle in Smithfield. A search revealed the drugs, the loaded firearm, the cash, and the other prohibited items concealed in the vehicle.

The sentencing judge imposed a total effective sentence comprising a non-parole period of eight years and a head sentence of 14 years. The applicant sought leave to appeal on five grounds, abandoning one ground at the hearing.

  • Whether the sentencing judge erred in characterising the commercial ecstasy supply offence as falling "around" the middle of the range of objective seriousness
  • Whether the degree of accumulation between the sentences for the ecstasy supply and the methylamphetamine supply was excessive
  • Whether the degree of accumulation between the sentences for the methylamphetamine supply and the firearms offence was excessive
  • Whether the total effective sentence was manifestly excessive, having regard to the mitigating factors found by the sentencing judge

Decision

The Court of Criminal Appeal rejected all four remaining grounds of appeal. On Ground 1, the Court found no error in the sentencing judge's assessment of objective seriousness for the ecstasy supply offence. The quantity of 194 grams sat above the commercial quantity threshold of 125 grams but well below the large commercial quantity threshold of 500 grams, and comparable cases supported a characterisation around the middle of the range.

On the accumulation grounds (Grounds 3 and 4), the Court found that some degree of accumulation was appropriate because the offences, while arising from the same occasion, involved different legal wrongs and different victims or interests. The extent of accumulation adopted by the sentencing judge was within the proper exercise of discretion and not excessive.

On the manifest excess ground (Ground 5), the Court applied the established test requiring the applicant to demonstrate that the sentences were unreasonable or plainly unjust. The Court found the individual sentences and their cumulative effect were well within the proper range for serious drug supply and firearms offences of this kind. The Form 1 matters were serious and could not be dismissed as minor, and the forfeiture of the $50,060.85 to the State could not be treated as a mitigating factor on sentence under s 24B of the Crimes (Sentencing Procedure) Act 1999.

The Court also noted, even on the assumption that error had been demonstrated, it would not have been satisfied 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 against sentence dismissed

Key Takeaways

  • No error was established in characterising a commercial drug supply offence as falling "around" the middle of the range of objective seriousness where the quantity, while exceeding the commercial threshold, remained well below the large commercial quantity threshold.
  • Some degree of accumulation of sentences is appropriate even where offences arise from the same occasion, provided they involve distinct legal wrongs; the Court of Criminal Appeal confirmed the sentencing discretion in this area is broad.
  • Under s 24B of the Crimes (Sentencing Procedure) Act 1999, the forfeiture of proceeds of crime to the State cannot be treated as a mitigating factor in sentencing.
  • A claim of manifest excess requires the applicant to show the sentences were unreasonable or plainly unjust, not merely that a lesser sentence was available; the Court applied the standard from Markarian v The Queen [2005] HCA 25.
  • In dismissing the appeal, the Court reinforced that Form 1 offences involving significant sums of cash, prohibited weapons, and drug-related documents are properly treated as serious matters that can increase the sentence on the principal count.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Crimes Act 1900 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
- R v Kalache [2000] NSWCCA 2; 111 A Crim R 152
- R v Williams [2005] NSWCCA 355; 156 A Crim R 225
- Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- R v Dodd (1991) 57 A Crim R 349
- R v AJP [2004] NSWCCA 434
- Buttrose v R [2011] NSWCCA 35
- R v Dang [2005] NSWCCA 430
- Mulato v R [2006] NSWCCA 282
- R v AZ [2011] NSWCCA 43; 205 A Crim R 222
- Khoury v R [2011] NSWCCA 118