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Court of Criminal Appeal 5 April 2012

Lawson v R

[2012] NSWCCA 56

Drugs
CRIMINAL LAW SENTENCE APPEAL DISMISSED.

Citation: Lawson v R [2012] NSWCCA 56
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2012
Judge(s): Beazley JA, Harrison J, McCallum J

Background

The applicant pleaded guilty in the District Court to two counts of supplying not less than a commercial quantity of a prohibited drug under the Drug Misuse and Trafficking Act 1985: 907.5 grams of methylamphetamine and 128 grams of ecstasy. Both offences carried a maximum penalty of 20 years' imprisonment and a standard non-parole period of ten years. The drugs were discovered during a home detention supervision visit, with police subsequently finding cash, electronic scales, unused resealable bags, and incriminating text messages on the applicant's mobile phones.

The District Court sentenced the applicant to concurrent terms: a five-and-a-half-year non-parole period with a three-and-a-half-year balance for the methylamphetamine offence, and a three-and-a-half-year non-parole period with an eighteen-month balance for the ecstasy offence. Two further matters, possession of a prohibited weapon and dealing with suspected proceeds of crime, were taken into account on a Form 1 alongside the principal charge.

The applicant sought leave to appeal against those sentences, raising three grounds: failure to consider Judicial Commission statistics, erroneous assessment of objective seriousness, and failure to give adequate weight to mitigating factors including a history of childhood sexual abuse documented in a psychologist's report.

  • Whether the sentencing judge erred by failing to consider statistics published by the Judicial Commission when determining the appropriate sentences.
  • Whether the judge incorrectly assessed the objective seriousness of the offences by placing undue weight on the quantity and packaging of the drugs.
  • Whether the judge failed to give adequate weight to the applicant's mental state and history of childhood sexual abuse as mitigating factors, including in the structuring of the non-parole period.

Decision

Ground 1: Judicial Commission statistics. The Court of Criminal Appeal held that a failure to consider Judicial Commission sentencing statistics does not, of itself, constitute an error in the sentencing process. The statistics were neither tendered nor put to the judge below, and the appellate submissions relying on them did not demonstrate that the sentences fell outside the statistical range. The Court also noted that earlier authority on the point, including MLP v R and Louizos v R, must now be read with caution following the High Court's decision in Muldrock v The Queen [2011] HCA 39.

Ground 2: Objective seriousness. The applicant argued that the sentencing judge impermissibly relied on quantity and packaging as the principal indicators of objective seriousness, contrary to R v MacDonnell. The Court rejected this ground. The judge had used quantity and packaging to infer the nature and level of the applicant's dealing, not as a mechanical substitute for a broader assessment of criminality. The finding that the applicant was a mid-level dealer supplying substantially for profit was well supported by the evidence, including the applicant's own cross-examination admissions.

Ground 3: Mitigating factors. The sentencing judge had expressly considered the psychologist's report but found no significant causal link between the applicant's history of sexual abuse and his decision to supply commercial quantities of drugs for profit. The Court of Criminal Appeal found that conclusion was open on the evidence, even if others might have reached a different view. On the question of the non-parole period's length, the Court noted the judge had already found special circumstances and departed from the statutory ratio. The resulting two-and-a-half-year supervision period on parole was, in the Court's view, a significant period, and no further departure was required.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error arises simply because a sentencing judge does not refer to Judicial Commission statistics, particularly where those statistics were never tendered or raised in the proceedings below.
  • Earlier New South Wales Court of Criminal Appeal decisions treating standard non-parole periods as benchmarks, including MLP v R and Louizos v R, must now be approached with caution following Muldrock v The Queen [2011] HCA 39.
  • A sentencing court may use drug quantity and packaging as evidence of the character and scale of a defendant's dealing without falling into the error identified in R v MacDonnell, provided it does not treat quantity alone as the sole determinant of objective seriousness.
  • In dismissing the appeal, the Court affirmed that the standard for appellate intervention in sentencing remains the identification of a specific error, consistent with the principles in House v The King (1936) 55 CLR 499.
  • A finding that no significant causal nexus existed between a history of childhood abuse and the commission of offences is capable of supporting a reduced, but not further reduced, departure from the statutory non-parole period proportion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4, Division 1A (standard non-parole periods) and s 33 (Form 1 offences)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Weapons Prohibition Act 1988 (NSW), s 7(1)

Cases
- House v The King (1936) 55 CLR 499
- Louizos v R; R v Louizos [2009] NSWCCA 71
- MLP v R (2006) 164 A Crim R 93
- Muldrock v The Queen [2011] HCA 39
- R v MacDonnell (2002) 128 A Crim R 44