AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
19
Court of Criminal Appeal 22 March 2011

R v AZ

[2011] NSWCCA 43

Also reported as (2011) 205 A Crim R 222
DrugsFirearms & weapons
CRIMINAL LAW SENTENCE CROWN APPEAL POSSESS PROHIBITED FIREARM KEYRING PISTOL ASSISTANCE TO AUTHORITIES

Citation: R v AZ [2011] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 22 March 2011
Judge(s): McClellan CJ at CL, Johnson J, McCallum J

Background

The respondent, referred to by the pseudonym AZ to protect his identity as an informant, was sentenced in the District Court in August 2010 following guilty pleas to two principal offences: supplying a large commercial quantity of MDMA (ecstasy), and possessing a prohibited firearm (a .25 calibre keyring pistol). A number of further drug-related offences, including supply of cocaine and cannabis and dealing with proceeds of crime, were taken into account on a Form 1 at sentencing.

The facts arose from a police search of the respondent's western Sydney home in November 2008. Officers discovered more than 1,081 grams of MDMA at the premises, more than double the large commercial quantity threshold of 500 grams under the Drug Misuse and Trafficking Act 1985. The safe also contained cocaine, cannabis, $23,500 in cash, and the prohibited firearm along with matching ammunition.

The District Court sentenced the respondent to a total effective non-parole period of two years and nine months, with the two sentences running entirely concurrently. The respondent had provided significant assistance to authorities, which the sentencing judge weighed heavily. The Crown appealed on the basis that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by failing to determine where the firearm possession offence sat in the range of objective seriousness
  • Whether the sentencing judge failed to adequately assess the objective seriousness of the large commercial drug supply offence
  • Whether the sentencing judge gave adequate regard to the standard non-parole periods for both offences
  • Whether the sentencing judge erred by running the firearm sentence entirely concurrently with the drug supply sentence, rather than accumulating it to some degree
  • Whether the individual sentences and the total effective sentence were manifestly inadequate

Decision

The Court of Criminal Appeal, in a judgment delivered by Johnson J (with McClellan CJ at CL and McCallum J agreeing), upheld all grounds of appeal. The Court found that the sentencing judge had made a number of identifiable errors that warranted appellate intervention and resentencing.

On the question of objective seriousness, the Court found the sentencing judge had not adequately assessed either offence. The drug supply involved a very large quantity of MDMA at high purity, with clear indicators of sophisticated distribution activity, including scales, sealing equipment, cutting agents, and multiple drug types. The firearm, while small, was in working order and came with suitable ammunition. Both offences required a more careful calibration against the relevant sentencing ranges and standard non-parole periods.

On accumulation, the Court found it was an error to make the firearm sentence wholly concurrent with the drug supply sentence. The two offences were distinct in nature, and partial accumulation was required to reflect the respondent's total criminality. Running the sentences entirely together failed to give adequate expression to the seriousness of the firearms offence as a separate matter.

The Court then resentenced the respondent. It applied a total discount of 50 per cent to reflect both the guilty pleas and his substantial assistance to authorities. The resulting sentences were significantly higher than those originally imposed, with the firearm sentence commencing partway through the balance of term of the drug supply sentence so as to achieve meaningful, if not full, accumulation.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court on 30 August 2010 quashed
  • Upon the charge of supplying a large commercial quantity of a prohibited drug (taking into account Form 1 offences): non-parole period of five years and two months commencing 26 November 2008, expiring 25 January 2014; balance of term of two years and ten months expiring 25 November 2016
  • Upon the charge of possession of a prohibited firearm: non-parole period of one year, one month and two weeks commencing 12 August 2013, expiring 25 September 2014; balance of term of seven months and two weeks expiring 9 May 2015
  • Earliest date for release on parole: 25 September 2014

Key Takeaways

  • Where a sentencing judge fails to locate each offence within the range of objective seriousness, that omission constitutes an identifiable error justifying appellate intervention, even if the judge ultimately applies a discount for assistance and pleas.
  • Wholly concurrent sentences for factually distinct offences, such as drug supply and firearm possession arising from the same search, may not adequately reflect the respondent's total criminality. The Court of Criminal Appeal confirmed that some degree of accumulation is generally required in such circumstances.
  • A very large quantity of MDMA (here, more than double the large commercial quantity threshold), combined with physical indicators of distribution such as scales, sealing equipment, and cutting agents, places an offence toward the higher end of objective seriousness for supply offences.
  • Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 serve as legislative guideposts that sentencing courts must explicitly engage with; failing to have adequate regard to them is a recognised basis for a Crown appeal.
  • Substantial assistance to authorities can attract a significant discount, but the Court of Criminal Appeal made clear that such a discount operates on a sentence that must first be properly calibrated, not used to compress an already inadequate starting point.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)

Cases
- R v JW [2010] NSWCCA 49; 199 A Crim R 486
- Wang v R [2009] NSWCCA 223
- Luu v R [2008] NSWCCA 285
- Hristovski v R [2010] NSWCCA 129
- R v McEvoy [2010] NSWCCA 110
- R v Sellars [2010] NSWCCA 133
- R v Morgan (1993) 70 A Crim R 368
- R v George [2004] NSWCCA 247; 149 A Crim R 38
- R v Green; R v Quinn [2010] NSWCCA 313
- R v Araya [2005] NSWCCA 283; 155 A Crim R 555
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- R v Krstic [2005] NSWCCA 391
- R v Tolley [2004] NSWCCA 165
- R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
- SZ v R [2007] NSWCCA 19; 168 A Crim R 248
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159