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11
Court of Criminal Appeal 2 March 2011

Mansour v R

[2011] NSWCCA 28

Also reported as (2011) 209 A Crim R 275
Drugs
CRIMINAL LAW APPEAL SENTENCING ONGOING SUPPLY OF COCAINE WHETHER MATERIAL ERROR ESTABLISHED RESENTENCE.

Citation: Mansour v R [2011] NSWCCA 28
Court: Court of Criminal Appeal, New South Wales
Date: 2 March 2011
Judges: James J, Hall J, Price J (Price J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to six offences involving the supply of cocaine, and adhered to those pleas in the District Court. The offences included one charge of ongoing drug supply under s 25A(1) of the Drug Misuse and Trafficking Act 1985, four charges of knowingly taking part in supply under s 25(1), and one charge of deemed supply under ss 25(1) and 29 of the same Act. Several additional related offences, including driving whilst disqualified and dealing with the proceeds of crime, were dealt with concurrently.

The District Court imposed a total effective sentence of nine years imprisonment with a non-parole period of six years and three months. A 30 per cent discount was applied for the utilitarian value of the guilty pleas and the applicant's offer of assistance to authorities in connection with his brother's murder.

The applicant sought an extension of time to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had incorrectly taken aggravating factors into account and that the resulting sentences were manifestly excessive. The Crown did not oppose the extension of time, conceding some merit in the first ground.

  • Whether the sentencing judge erred by treating as aggravating factors characteristics that were already inherent in the offence of ongoing drug supply (in particular, disregard for public safety and the degree of planning involved)
  • Whether a conviction for "deemed supply" under ss 25(1) and 29 of the Drug Misuse and Trafficking Act can constitute one of the acts of supply required to establish the offence of ongoing drug supply under s 25A(1)
  • Whether, if error was established, resentencing was warranted and what the appropriate sentence should be

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in the application of certain aggravating factors when sentencing on count 1, the ongoing supply offence. Specifically, the sentencing judge had treated disregard for public safety and a degree of planning as aggravating features, when those characteristics are inherent in the very nature of ongoing drug supply. Treating factors that form part of the essential elements or ordinary character of an offence as separate aggravating factors constitutes double-counting, which amounts to legal error.

The Court also addressed whether a "deemed supply" offence could form part of an ongoing drug supply charge. This question arose because count 3 (deemed supply based on cocaine found during a search) was one of the matters relied upon in the course of the offending period. The Court confirmed that such an offence can, in appropriate circumstances, be counted as one of the component acts of supply for the purposes of s 25A(1).

Because error was established on the first ground, the Court proceeded to resentence the applicant on count 1. The Court considered all relevant sentencing factors, including the applicant's plea of guilty, his offer of assistance, his modest expression of remorse, his health condition (a kidney dysfunction, which was found not to constitute a mitigating factor on the evidence), and his limited prospects of rehabilitation. Applying the same 30 per cent discount and the sentencing judge's finding of special circumstances, the Court reduced the sentence for count 1 by one year.

The remaining sentences were confirmed without alteration, as no error affecting those counts was established.

Orders Made

  • Leave to extend time to appeal granted
  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence imposed for count 1 quashed
  • In lieu thereof, the applicant sentenced to imprisonment with a non-parole period of 4 years and 3 months commencing 27 October 2007 and expiring 26 January 2012, with a balance of term of 2 years and 9 months expiring 26 October 2014
  • All other sentences confirmed
  • The applicant eligible for release on parole on 27 January 2012

Key Takeaways

  • Treating disregard for public safety and planning as aggravating factors in an ongoing drug supply sentence constitutes error where those characteristics are already inherent in the nature of that offence, as the Court of Criminal Appeal confirmed here.
  • A "deemed supply" offence under ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 can, in appropriate circumstances, form one of the component supply acts underpinning a charge of ongoing drug supply under s 25A(1).
  • Under the approach confirmed in R v Smith (1987) 44 SASR 587 and R v Badanjak [2004] NSWCCA 395, a medical condition does not constitute a mitigating factor in sentencing unless the evidence establishes that imprisonment will be a greater burden by reason of that condition or that appropriate care is not being provided.
  • Establishing error in the treatment of aggravating factors does not automatically result in a wholesale re-examination of all sentences; the Court here varied only the sentence directly affected and confirmed the remainder.
  • The Court gave only modest weight to remorse where the applicant's past disregard for the law did not support findings of a low likelihood of reoffending or good prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1), 29, 36Z(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Crimes Act 1900 (NSW), s 188
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibition Act 1998 (NSW)

Cases
- Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Elyard v Regina [2006] NSWCCA 43
- Georgopolous v R [2010] NSWCCA 246
- Regina v Cheikh; Regina v Hoete [2004] NSWCCA 448
- Regina v Darrell Terry McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Regina v Glen Alan Jackson [2004] NSWCCA 110
- Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137
- Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- R v Badanjak [2004] NSWCCA 395
- R v Kairouz [2005] NSWCCA 247
- R v Le [2005] NSWCCA 162
- R v Smith (1987) 44 SASR 587
- Sivell v R [2009] NSWCCA 286
- Tran v R [2007] NSWCCA 140
- Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545