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Court of Criminal Appeal 23 November 2012

Perdija v R

[2012] NSWCCA 244

Drugs
SENTENCING SIX YEAR NON PAROLE PERIOD FIRST OFFENCE TOTALITY SENTENCE MANIFESTLY EXCESSIVE

Citation: Perdija v R [2012] NSWCCA 244
Court: Court of Criminal Appeal, NSW
Date: 23 November 2012
Judge(s): Allsop P, Davies J, Campbell J

Background

The applicant, a young first offender, pleaded guilty in the District Court to four counts of supplying a commercial quantity of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a series of drug transactions with an undercover police officer between June and August 2009, during which the applicant sold or attempted to supply several thousand MDMA tablets across four separate occasions.

At sentencing, the applicant was 21 years old with no prior criminal history, strong community ties, and compelling evidence of good character. He had pleaded guilty at the earliest opportunity, received a 25 per cent discount, and shown genuine contrition. The sentencing judge accepted that substance abuse, triggered by a series of untreated stressful life events, had impaired his judgment and that his offending was out of character.

The District Court imposed an aggregate sentence of nine years and nine months imprisonment, with a non-parole period of six years. The applicant sought leave to appeal on the basis that the overall sentence, and specifically the sentence for count 4 and its degree of accumulation, was manifestly excessive.

  • Whether the sentencing judge erred by giving decisive weight to the quantity of drugs involved in count 4, contrary to the "instinctive synthesis" approach required by Wong v R (2001) 207 CLR 584
  • Whether the degree of accumulation applied to count 4 was unreasonably greater than that applied to the earlier counts, without rational justification
  • Whether the aggregate sentence of nine years and nine months, with a six-year non-parole period, was manifestly excessive for a first offender with strong prospects of rehabilitation
  • Whether the standard non-parole period of 10 years for this class of offence was given undue prominence, effectively distorting the sentencing exercise in a manner inconsistent with Muldrock v R (2011) 244 CLR 120

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in treating the quantity of drugs in count 4 as a decisive factor, rather than as one among many competing considerations. This approach departed from the "instinctive synthesis" principle confirmed by the High Court in Wong v R: a sentencer must weigh all relevant factors together to arrive at a single, proportionate sentence, and may not elevate any one element to a position of chief importance.

The Court also found no rational basis for accumulating count 4 for a longer period than the first three counts. The fourth offence was not materially more serious than the others, particularly given that the applicant never actually possessed the drugs the subject of that count. The longer accumulation lacked a reasoned foundation.

Taking the overall picture, the Court concluded that the aggregate sentence was manifestly excessive when measured against all the relevant subjective factors: the applicant's youth, his first-offender status, his genuine rehabilitation efforts in custody, and his strong prospects of not reoffending. The Court noted that a crushing sentence would be inappropriate in these circumstances.

The sentence for count 4 was set aside and replaced. The sentences for counts 1 to 3 were not disturbed, as no real challenge had been mounted to those.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentence for count 4 set aside and replaced with imprisonment comprising a non-parole period of two years and nine months commencing 6 February 2011 and expiring 5 November 2013, with a balance of term of two years and nine months expiring 5 August 2016 (the 13 Form 1 offences taken into account)

Key Takeaways

  • Under the "instinctive synthesis" approach confirmed in Wong v R, a sentencing court commits legal error when it treats the quantity of a prohibited drug as the chief or decisive factor in fixing a sentence; drug quantity may be relevant, but it must be weighed alongside all other competing considerations.
  • Where counts are accumulated, the degree of accumulation applied to a later count must have a rational foundation; a longer accumulation period applied without reasoned justification constitutes an error warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that, following Muldrock v R, undue emphasis on a standard non-parole period can distort the sentencing exercise and produce a result outside a just and proportionate range.
  • A first offender's age, good character, strong rehabilitation prospects, and genuine contrition are significant mitigating factors that must receive genuine weight in drug supply sentencing, even for offences involving commercial quantities.
  • In applying the totality principle, the Court reduced the overall non-parole period to avoid a "crushing" aggregate sentence that would be disproportionate to the applicant's overall criminality and subjective circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- Wong v R [2001] HCA 64; 207 CLR 584
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Eedens v R [2009] NSWCCA 254
- Herbert v R [2003] WASCA 61; 27 WAR 330
- R v Clinch (1994) 72 A Crim R 301
- R v Nassif [2005] NSWCCA 38
- Vu v R [2006] NSWCCA 188