AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 23 March 2012

R v Calcutt

[2012] NSWCCA 40

Also reported as (2012) 221 A Crim R 505
Drugs
SENTENCE BY MAJORITY SIGNIFICANCE OF FORM 1 OFFENCE.

Citation: R v Calcutt [2012] NSWCCA 40
Court: Court of Criminal Appeal, New South Wales
Date: 23 March 2012
Judge(s): Whealy JA, Adams J, Latham J

Background

The appellant had pleaded guilty in the Local Court to knowingly taking part in the manufacture of 59.471 kilograms of MDMA, a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). He also asked the sentencing court to take into account four Form 1 matters: three charges of possessing tablet presses and one charge of supplying cocaine (102.7 grams, more than twenty times the indictable quantity).

The sentencing judge found that the appellant's role in the manufacturing operation was at a "relatively low level," but noted that he had allowed his premises to be used for approximately four months, had helped set up those premises, actively assisted in the manufacture after returning from overseas, and received benefits including forgiveness of a drug debt and money payments.

The appellant sought leave to appeal against the sentence, arguing that his favourable subjective circumstances provided significant mitigation warranting a substantially lesser sentence.

  • Whether the sentence imposed was warranted in law, following the High Court's decision in Muldrock v The Queen [2011] HCA 39, which reformed the approach to standard non-parole periods
  • Whether the sentencing judge gave proper weight to the appellant's subjective circumstances relative to the objective gravity of the offence
  • Whether the quantity of drug seized was a sufficiently significant factor in assessing objective seriousness
  • Whether the Form 1 cocaine supply offence was appropriately taken into account in increasing the sentence

Decision

The Court dismissed the appeal by majority (Whealy JA and Latham J, Adams J dissenting on sentence), finding that no lesser sentence was warranted in law. The majority held that, despite the appellant's favourable personal circumstances, the objective gravity of the offence was too great to be substantially offset by those subjective factors.

On the question of quantity, both Whealy JA and Latham J emphasised that 59 kilograms of MDMA is approximately 120 times the large commercial quantity, and that the amount seized was likely less than the total manufactured during the four-month operation. Latham J noted that a non-parole period of five years (as proposed by Adams J) would almost wholly discount the quantity as a relevant consideration. The potential for such a volume of drugs to cause widespread individual and social harm underscored the need for substantial general deterrence.

On the appellant's role, the majority acknowledged the sentencing judge's finding of relatively low-level involvement, but rejected any suggestion that this characterisation could be treated as minimising moral culpability. The readiness with which the appellant participated, for what amounted to limited personal financial benefit ($12,000 of drug debt forgiven), and his active assistance in manufacture, reflected significant culpability. The majority also noted that impaired judgment from the appellant's own drug use could not appreciably mitigate the offending.

On the Form 1 cocaine supply offence, the majority found no error in the sentencing judge treating 102.7 grams of 80% pure cocaine as warranting an increase in the sentence. The appellant had admitted the Form 1 matters at the sentencing hearing and confirmed them on appeal, and no ground of error was raised in relation to this aspect of the sentence.

Orders Made

  • Leave to appeal against sentence allowed.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that, in cases involving very large quantities of prohibited drugs, the objective gravity of the offence can outweigh even a favourable and substantial subjective case.
  • The quantity of drug involved in a manufacture charge is a highly relevant factor in assessing objective seriousness, even where the offender's role is found to be at a relatively low level, and must not be treated as effectively irrelevant.
  • A Form 1 cocaine supply offence involving more than twenty times the indictable quantity, with high purity, appropriately increases the sentence on the principal charge, consistent with R v Barton [2001] NSWCCA 63 and R v Grube [2005] NSWCCA 140.
  • Where an accused, represented by experienced senior counsel, admits Form 1 matters at sentencing and raises no challenge to them on appeal, those matters will be treated as properly before the court and appropriately used to increase the sentence.
  • General deterrence carries very substantial weight in sentencing for large-scale MDMA manufacture, given the potential for harm to the broader community from the dissemination of such volumes of the drug.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25, 29

Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
- R v Grube [2005] NSWCCA 140
- Paxton v R [2011] NSWCCA 242
- Wong v R (2001) 207 CLR 584
- Dionys v R [2011] NSWCCA 272
- Caristo v R [2011] NSWCCA 7
- Kalemusic v R [2009] NSWCCA 178
- Cvitan v R [2009] NSWCCA 156
- R v Carey (1990) 20 NSWLR 292
- R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328
- R v Brandt [2004] NSWCCA 3
- R v Stankovic [2006] NSWCCA 229
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; (2002) 56 NSWLR 146