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24
Court of Criminal Appeal 28 March 2012

Yang v R

[2012] NSWCCA 49

Also reported as (2012) 219 A Crim R 550
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY OF HEROIN MENTAL CONDITION OF OFFENDER WHETHER MORAL CULPABILITY REDUCED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Yang v R [2012] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 28 March 2012
Judges: Macfarlan JA, R S Hulme J, R A Hulme J (judgment of R A Hulme J)

Background

The appellant pleaded guilty in the Local Court to supplying heroin and was committed to the District Court for sentencing. She asked the sentencing judge to take into account three further offences on a Form 1 document: dealing with proceeds of crime ($14,820 in cash) and supplying two other prohibited drugs (ketamine and methylamphetamine).

A search warrant executed at her home in Fairfield in February 2010 uncovered a total of 135.1 grams of heroin, the two additional prohibited drugs, cash, scales, resealable plastic bags, and what appeared to be drug ledgers. The traffickable quantity for heroin is 3 grams; the commercial quantity is 250 grams. The heroin found therefore represented approximately 54 per cent of the commercial quantity.

Judge Sides in the District Court at Parramatta sentenced the appellant to 5 years imprisonment with a non-parole period of 2 years, commencing 9 April 2011. A 25 per cent discount was applied for her early guilty plea. She appealed to the Court of Criminal Appeal on three grounds.

  • Whether the sentencing judge failed to give adequate weight to the appellant's mental health conditions (depression, anxiety, and symptoms of Post-Traumatic Stress Disorder) when assessing her moral culpability at the time of the offence.
  • Whether the sentencing judge erred in finding that the appellant appreciated the consequences of her conduct, given her mental health conditions.
  • Whether the sentence of 5 years imprisonment with a 2-year non-parole period was manifestly excessive.

Decision

Ground 1 and 2: Mental health and appreciation of consequences

The Court found no error in the sentencing judge's approach to the appellant's mental health. The judge expressly acknowledged her depression, anxiety, and vulnerability to pressure from her mother, and accepted that her mental health would make custody more burdensome. However, the evidence did not establish that the appellant's conditions impaired her understanding of what she was doing or of the consequences at the time of the offences. The Court of Criminal Appeal held that the sentencing judge was not required to find that mental conditions were causative of the offending before giving them weight, but was equally entitled to conclude on the evidence that they did not reduce her moral culpability to a significant degree.

The Court noted that the appellant had not given evidence, and the material was limited to a general practitioner's letter and a psychologist's report. It accepted that these conditions were genuine and current, but found the judge had adequately taken them into account, including by treating them as an aspect of the sentence that would make custody harder to bear.

Ground 3: Manifest excess

The Court was not persuaded the sentence was manifestly excessive. The offending was serious: the heroin was found with paraphernalia consistent with commercial dealing, the quantity was about 45 times the traffickable amount, and the presence of two additional prohibited drugs and drug ledgers indicated involvement beyond a single transaction. The Form 1 matters, including the $14,820 in proceeds of crime, were described as far from insignificant. Assessed against the 15-year maximum and taking into account all mitigating factors, including the appellant's mental conditions, the sentence fell within the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to find that a mental health condition was causative of the offending before it can be relevant to sentence, but the weight given will depend on the nature and extent of the condition established by the evidence.
  • Where an offender does not give evidence and the mental health material is limited to a GP letter and a psychologist's report, a sentencing court may find that the conditions did not materially impair the offender's appreciation of the consequences of their conduct.
  • The Court of Criminal Appeal confirmed that a mental health condition can remain relevant to sentence even where it falls short of meeting the statutory mitigating factor under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999, including by making custodial time more burdensome.
  • In dismissing the manifest excess ground, the Court emphasised the cumulative significance of the quantity of heroin (approximately 54 per cent of the commercial quantity), the presence of other prohibited drugs, dealing paraphernalia, apparent drug ledgers, and substantial cash proceeds.
  • No error was established in the sentencing judge's approach despite the absence of express reference to every piece of evidence; the sentencing remarks, read as a whole, disclosed adequate engagement with the appellant's personal circumstances and the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(j)

Cases
- Ayshow v R [2011] NSWCCA 240
- Benitez v R [2006] NSWCCA 21
- Cao v R [2010] NSWCCA 109
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Graham v R [2009] NSWCCA 212
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- MDZ v R [2011] NSWCCA 243
- Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
- R v Baker [2000] NSWCCA 85
- R v Biddle [2011] NSWSC 1262
- R v Cotterill [2012] NSWSC 89
- R v Israil [2002] NSWCCA 255
- R v Koloamatangi [2011] NSWCCA 288
- R v Majid [2010] NSWCCA 121
- R v Mohammed Fahda [2012] NSWSC 114
- R v Tuan Anh Tran [2011] NSWSC 1480