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Court of Criminal Appeal 11 December 2012

Hill v R

[2012] NSWCCA 265

Drugs
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY OF SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hill v R [2012] NSWCCA 265
Court: Court of Criminal Appeal, NSW
Date: 11 December 2012
Judges: Simpson J, Harrison J, Adamson J

Background

The appellant pleaded guilty in the District Court to one count of supplying not less than a large commercial quantity of a prohibited drug, specifically methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence was a rolled-up charge covering four separate supply transactions occurring between November and December 2010, conducted at the appellant's business premises. The maximum penalty for this offence is life imprisonment, with a standard non-parole period of 15 years.

The appellant's role in the supply chain was characterised as that of a go-between: he introduced the buyer and seller, allowed his premises to be used, stood guard during transactions, and participated in price negotiations. He received $1,000 from one transaction and nothing from the others. He was not the principal in the operation.

The District Court sentenced the appellant to a total of 6 years imprisonment, with a non-parole period of 4 years, after applying a 25 per cent discount for early guilty pleas and a further 25 per cent discount for past and future assistance to authorities. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge's starting point of 12 years (before discounts) was erroneously high, effectively neutralising the benefit of the discounts applied.
  • Whether the overall head sentence of 6 years adequately reflected the combined effect of the appellant's subjective circumstances and the objective seriousness of the offence.
  • Whether the sentencing judge failed to give proper weight to the appellant's subjective case, constituting an error in the sense described in House v The King.

Decision

The Court of Criminal Appeal, constituted by Harrison J (with Simpson J and Adamson J agreeing), granted leave to appeal and allowed the appeal. Harrison J found that the sentencing judge had failed to incorporate certain matters particularly affecting the appellant's subjective circumstances and had thereby given those factors inadequate and improper consideration.

The appellant's subjective case was described as very strong. He had no prior criminal record, demonstrated genuine remorse, and held good prospects of rehabilitation. He had an extensive history of community involvement, including wildlife rescue and surf lifesaving, and operated a legitimate business that contracted with police services. A forensic psychologist assessed him as an essentially pro-social individual with a very positive forensic prognosis. Since incarceration, his mental health had deteriorated significantly, including a period on suicide watch.

Harrison J also noted that the appellant had been emotionally vulnerable at the time of the offending, described by the forensic psychologist as naïve and susceptible to external pressure. The sentencing judge's failure to properly incorporate these matters into the sentencing analysis constituted an error of the kind identified in House v The King, warranting appellate intervention.

The Court substituted a significantly reduced sentence, reducing the total term from 6 years to 3 years, with a non-parole period of 2 years. The same discounts for the early guilty plea and assistance to authorities were preserved, and the finding of special circumstances was reaffirmed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence imposed by Sorby DCJ on 18 November 2011 quashed.
  • Substituted sentence: non-parole period of 2 years commencing 7 September 2011 and expiring 6 September 2013, with a balance of term of 1 year commencing 7 September 2013 and expiring 6 September 2014.

Key Takeaways

  • A sentencing court's failure to properly incorporate an offender's subjective circumstances into its analysis can constitute an error justifying appellate intervention under the principles in House v The King, even where the judge acknowledges those factors in general terms.
  • Where a starting point is set so high that the mathematical effect of applicable discounts (for guilty plea and assistance) is substantially neutralised, this may render the resulting sentence manifestly excessive.
  • The Court of Criminal Appeal confirmed that a go-between role in a drug supply chain, involving no significant financial benefit and a relatively unsophisticated level of participation, is relevant to where an offence sits on the scale of objective seriousness.
  • Strong subjective features, including prior good character, genuine remorse, community service, vulnerability at the time of offending, and post-offence mental health deterioration, are capable of warranting a substantial reduction from a starting point that might otherwise appear proportionate to the objective gravity of the offence.
  • In substituting a sentence, the Court of Criminal Appeal preserved the existing discounts for early plea and assistance, and the finding of special circumstances, indicating that those aspects of the original sentencing exercise were not themselves in error.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen (2005) 215 ALR 213; (2000) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
- R v KB [2011] NSWCCA 190
- R v Koloamatangi [2011] NSWCCA 288