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Court of Criminal Appeal 21 May 2012

Robinson v R

[2012] NSWCCA 26

Drugs
CRIMINAL LAW TWO COUNTS OF SUPPLY DRUGS DIFFERENT TYPES OF DRUGS ACCUMULATION OF SENTENCES PRINCIPLES

Citation: Robinson v R [2012] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 21 May 2012
Judge(s): Macfarlan JA, Rothman J, Davies J

Background

The appellant was convicted after trial of two offences under the Drug Misuse and Trafficking Act 1985. The first count involved the supply of a commercial quantity of MDMA (125.42 grams), and the second involved the supply of methylamphetamine (115.5 grams). Both drug types were located at the same premises during a single police search on 17 August 2007, along with nearly $16,000 in cash and personal items linking the appellant to the property.

The sentencing judge found that the appellant's role was that of a commercial warehouser. The two sentences were accumulated so that the sentence for Count 2 commenced three years into the sentence for Count 1, producing a total non-parole period of six years.

On appeal, the appellant challenged both the degree of accumulation and whether the overall sentence was manifestly excessive. A third ground, concerning the sentencing judge's treatment of objective seriousness, was abandoned following the High Court's decision in Muldrock v The Queen [2011] HCA 39.

  • Whether the extent of accumulation of the two sentences was erroneous in the circumstances
  • Whether the overall sentence was manifestly excessive
  • What weight, if any, should be given to fresh evidence tendered on the re-sentencing exercise

Decision

Davies J, with whom Macfarlan JA and Rothman J agreed, accepted that neither individual sentence was manifestly excessive when considered on its own. The difficulty lay in the degree of accumulation between the two counts. Because the two offences involved different types of drugs, there was no commonality of criminality that would ordinarily call for a high degree of concurrency. However, the overall sentence still needed to reflect the totality principle.

Davies J examined comparable cases, including McKellar v R, Luu v R, O'Brien v R, Locke v R, and Ellis v R, to assess the appropriate range. The appellant was distinguished from the appellants in those cases by her age (59 at sentence), her two prior drug supply convictions, and her continued denial of responsibility. Conversely, the quantity of drugs involved in the present case was generally lower than in the comparison cases, and the supply operation was less systematic.

Balancing those matters, Davies J concluded that the sentence for Count 2 should have commenced two years (rather than three) after the commencement of Count 1. This reduced the total non-parole period from six years to five years, with the additional term remaining unchanged. The fresh psychological evidence tendered at the appeal hearing, which addressed the death of one of the appellant's children and ongoing family difficulties, did not warrant any further adjustment given the appellant's prior convictions and her lack of acceptance of responsibility.

Rothman J added that while it is desirable for a sentencing judge to explain the degree of accumulation or concurrence applied, it is not strictly necessary. His Honour observed that instinctive synthesis can produce a lack of transparency but confirmed that the result in the original sentence was excessive and that greater concurrency was warranted under Pearce v R.

Orders Made

  • Leave to appeal granted
  • Sentence for Count 2 imposed by Solomon DCJ on 31 October 2008 quashed
  • In substitution: non-parole period of 3 years commencing 17 August 2009 and expiring 16 August 2012, with an additional term of 3 years commencing at the expiration of the non-parole period and expiring 16 August 2015

Key Takeaways

  • Where two drug supply offences involve different types of drugs found at the same location, the Court of Criminal Appeal confirmed that there is no commonality of criminality requiring a high degree of concurrence, but the totality principle still requires the overall sentence to reflect the full criminality without becoming crushing.
  • The Court reduced the accumulated sentence because the combined effect exceeded what was appropriate, even though each individual sentence was sound in isolation. This reflects the operation of the totality principle as articulated in Pearce v R (1998) 194 CLR 610.
  • Rothman J noted that explaining the precise degree of accumulation or concurrence in sentencing reasons is desirable but not strictly necessary as a matter of legal requirement.
  • Comparative sentencing analysis played a significant role: the court examined a group of related CCA decisions to calibrate the appropriate degree of accumulation, weighing the appellant's prior drug supply convictions and lack of remorse against the relatively modest quantities of drugs involved.
  • Fresh evidence of personal hardship tendered on re-sentencing did not alter the outcome where the sentencing court had already taken into account the appellant's subjective circumstances and her record demonstrated a pattern of drug supply offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Muldrock v The Queen [2011] HCA 39
- House v The King (1936) 55 CLR 499
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Hammoud (2000) 118 A Crim R 66
- R v Blair [2005] NSWCCA 78
- Luu v R [2008] NSWCCA 285
- McKellar v R [2010] NSWCCA 295
- O'Brien v R [2010] NSWCCA 297
- Locke v R [2010] NSWCCA 296
- Ellis v R [2010] NSWCCA 298