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Court of Criminal Appeal 10 March 2011

Buttrose, Richard William v R

[2011] NSWCCA 35

Drugs
CRIMINAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE OBJECTIVE CRIMINALITY ACCUMULATION OF SENTENCE ORGANISED CRIMINAL ACTIVITY

Citation: Buttrose, Richard William v R [2011] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 10 March 2011
Judge(s): McClellan CJ at CL; Hall J; Garling J

Background

The applicant pleaded guilty to three counts of drug supply under the Drug Misuse and Trafficking Act 1985, arising from a police investigation into cocaine dealing in Sydney's eastern suburbs. The offences ranged from a small street-level supply of 8.02 grams on 24 December 2008, to a large commercial quantity supply of nearly 6 kilograms discovered at his Darling Point premises on 26 February 2009. Police also found over $1.3 million in cash at that address.

At first instance in the District Court, the applicant was sentenced to a total term of 16 years imprisonment with a non-parole period of 12 years and 6 months. The sentencing judge applied a 45% discount to reflect the applicant's early guilty plea and assistance to authorities. Four additional matters were taken into account on a Form 1.

The applicant sought leave to appeal against the sentences, contending that the sentencing judge had made errors in assessing objective criminality, in accumulating sentences, and in giving insufficient weight to his subjective circumstances.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offences, particularly Count 3 (the large commercial quantity supply)
  • Whether the accumulation of sentences was appropriate or produced a result that was manifestly excessive
  • Whether insufficient weight was given to the applicant's subjective circumstances
  • Whether the overall sentence, after allowing a 45% discount for plea and assistance, was correct in principle

Decision

McClellan CJ at CL, with Hall J agreeing, found that the sentencing judge had made errors warranting intervention. The Crown itself conceded that the sentencing judge had erred in describing Count 3 as "well above the mid-range" of objective seriousness, and the Court proceeded on the basis that the offence sat at the mid-range. The Court also found that the accumulation of sentences, when considered in combination with the objective criminality as properly assessed, produced a result that was manifestly excessive.

The Court accepted that the applicant had significant subjective matters in his favour, including his early guilty plea, his cooperation with authorities, and personal circumstances that the sentencing judge had not adequately weighed. The 45% discount applied below was not itself challenged as an error, but the overall sentence structure required reconsideration in light of the conceded errors.

Garling J added separate observations, expressing some reservations about the Crown's concession. His Honour noted that the scale of the enterprise, the large quantity of drugs and cash, and the commercially motivated nature of the supply were serious. He also remarked that factors such as the applicant deriving personal gratification from his status as a supplier were wholly irrelevant to the assessment of objective criminality. Notwithstanding his reservations, Garling J accepted that the Crown's concessions in the circumstances were entitled to significant weight, and agreed with the orders proposed.

Orders Made

  • Leave to appeal against sentence granted
  • The sentences imposed at first instance were quashed
  • The applicant was re-sentenced as follows:
  • Count 1: 12 months imprisonment commencing 26 February 2009
  • Count 2: 2 years imprisonment commencing 26 August 2009
  • Count 3: A total term of 12 years imprisonment comprising a non-parole period of 9 years commencing 26 August 2009 and concluding 25 August 2018, with a balance of term of 3 years commencing 26 August 2018 and concluding 25 August 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that a concession by the Crown as to a sentencing error carries significant weight, even where individual judges may not independently have found the error established.
  • Objective seriousness must be assessed by reference to the actual conduct constituting the offence. Garling J emphasised that factors relating to an offender's personal gratification or social status derived from offending are irrelevant to that assessment.
  • Where a sentencing judge errs in characterising objective seriousness, that error can infect the accumulation of sentences and the overall sentencing structure, warranting re-sentencing by the appellate court.
  • Insufficient weight given to an applicant's subjective circumstances, considered alongside errors in assessing objective criminality, can together render an aggregate sentence manifestly excessive even where a substantial discount for plea and assistance has already been applied.
  • In re-sentencing, the Court reduced the total effective term by restructuring the accumulation of individual counts, bringing the sentence into alignment with the correct assessment of objective seriousness and the applicant's subjective circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Criminal Procedure Act 1986 (NSW), s 167
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Coetzee v R [2007] NSWCCA 12
- R v AJP (2004) 150 A Crim R 575
- R v El Helou [2010] NSWCCA 111
- R v Stankovic [2006] NSWCCA 229
- R v Way (2004) 60 NSWLR 168
- R v XX (2009) 195 A Crim R 38
- Sukkar v R [2007] NSWCCA 298
- Wang v R [2009] NSWCCA 223