Citation: Brent Redfern v R [2012] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 23 August 2012
Judges: McClellan CJ at CL; Adams J; Hoeben J
Background
The appellant pleaded guilty in the District Court to two drug supply offences under the Drug Misuse and Trafficking Act 1985: ongoing supply of cocaine on three or more separate occasions within a 30-day period (between 7 and 26 May 2010), and a discrete supply of 54.8 grams of cocaine on 10 June 2010. A further offence of dealing with suspected proceeds of crime (namely $7,700 found in a safe) was placed before the court on a Form 1, meaning it was taken into account at sentencing without a separate conviction.
The appellant had taken part in a series of police undercover operations in the Penrith area, acting alongside another drug supplier. His role involved direct negotiation and supply to undercover officers. He received a 25% discount on sentence for his early guilty pleas.
At first instance, the appellant was sentenced to a fixed term of 3 years on the single supply count and, on the ongoing supply count (incorporating the Form 1 matter), a non-parole period of 3 years with a total term of 6 years. The implied starting point for the ongoing supply head sentence was 8 years, or approximately 8 years and 8 months when the discount was properly accounted for. The appellant sought leave to appeal on three grounds.
Legal Issues
- Whether the sentencing judge erred in how she used the Form 1 offence (proceeds of crime) to increase the sentence for the ongoing supply charge
- Whether the sentencing judge erred in finding there was "little mitigation" in the appellant's subjective circumstances
- Whether the sentences, individually and in combination, were manifestly excessive
Decision
Form 1 and the agreed facts: Adams J found that the sentencing judge had acted on an adverse factual finding, namely that the $7,700 represented proceeds of drug transactions beyond those charged, without that issue having been raised by the Crown or tested. The agreed facts recorded the appellant's explanation for the source of the funds without challenge, and since all cash handed to the appellant had been pre-recorded, police were in a position to verify his account. Departing from agreed facts in a manner adverse to the offender requires findings beyond reasonable doubt. The judge's reasoning did not meet that standard, and this constituted legal error.
Subjective circumstances: Both Adams J and Hoeben J considered the appellant's subjective case to be a strong one, and one that warranted meaningful weight in the sentencing process. The sentencing judge's finding that there was "little mitigation" was not adequately supported given the subjective material before her.
Manifest excess: Taking together the error in the Form 1 treatment, the departure from agreed facts, and the inadequate weight given to subjective factors, the Court of Criminal Appeal concluded the sentences were manifestly excessive. Hoeben J noted, however, that the objective seriousness of the offending remained substantial. The appellant had previously supplied cocaine to acquaintances, had obtained a dedicated mobile phone for drug-related calls, and was capable of sourcing significant quantities of drugs, which pointed to meaningful familiarity with the drug trade rather than opportunistic or first-time involvement.
Outcome: Leave to appeal was granted and the original sentences were quashed. Reduced sentences were substituted. Hoeben J expressed some reservations about Adams J's use of sentencing statistics but agreed with the orders and the core reasoning.
Orders Made
- Leave to appeal granted
- Original sentences quashed
- Substituted sentences imposed:
- Count 1 (supply of cocaine on 10 June 2010, s 25(1)): fixed term of imprisonment of 1 year and 6 months, commencing 10 June 2010
- Count 2 (ongoing supply of cocaine, 7 to 26 May 2010, s 25A(1)), taking into account the Form 1 matter: non-parole period of 2 years and 6 months commencing 10 December 2010 and expiring 9 June 2013, with a balance of term of 2 years and 6 months expiring 9 December 2015
Key Takeaways
- A sentencing court cannot use a Form 1 offence to increase sentence on the basis of a factual finding adverse to the offender where that finding was not raised by the Crown and was not established beyond reasonable doubt.
- Departing from agreed facts placed before a sentencing court, in a manner unfavourable to the offender, requires proper findings made to the requisite criminal standard.
- Where strong subjective circumstances exist, a sentencing court must give them genuine and adequate weight, balanced against the objective seriousness of the offending rather than simply characterised as amounting to "little mitigation".
- The Court of Criminal Appeal confirmed that ongoing supply offences under s 25A(1) of the Drug Misuse and Trafficking Act 1985 remain serious, and reduced sentences must still reflect the substantial objective gravity of the conduct.
- Hoeben J declined to express a concluded view on the use of statistical comparisons in sentencing analysis, indicating that approach is not universally endorsed within the Court.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases cited:
- Gore and Hunter v R [2010] NSWCCA 330
- Hinchcliffe v R [2010] NSWCCA 306
- Maglis v R [2010] NSWCCA 247
- Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
- R v Cheikh [2004] NSWCCA 448
- R v Collins [2004] NSWCCA 30
- R v Esquilant [2007] NSWCCA 248
- R v Henry [1999] NSWCCA 111
- R v Hide [2003] NSWCCA 371
- R v Kairouz [2005] NSWCCA 247
- R v Leroy (1984) 13 A Crim R 469
- R v Luong [2002] NSWCCA 238
- R v Mirza [2007] NSWCCA 248
- R v Sakkar [2003] NSWCCA 26
- R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
- R v Vu [2005] NSWCCA 266