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Court of Criminal Appeal 11 April 2012

Sleiman v R

[2012] NSWCCA 58

Drugs
CRIMINAL LAW DRUG DEALER CONDUCT TO SUPPORT HABIT CLOSE FAMILY SUPPORT FINDING AGGRAVATED SENTENCE IMPOSED SENTENCE REDUCED NO POINT OF PRINCIPLE

Citation: Sleiman v R [2012] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 11 April 2012
Judges: McClellan CJ at CL, Davies J, Garling J

Background

The applicant pleaded guilty in the District Court to one count of knowingly taking part in the supply of 21.8 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Police found the drugs, along with cannabis, digital scales, cash totalling over $6,000, a box of ammunition and items believed to be stolen, on the applicant's person, in his vehicle, and at his residence. Eleven further offences were placed on a Form 1 to be taken into account at sentence.

Charteris DCJ sentenced the applicant to 4 years and 6 months imprisonment with a non-parole period of 3 years, commencing from the date of arrest. The applicant sought leave to appeal against the severity of that sentence.

The applicant had a lengthy prior criminal history, including two earlier convictions for supplying prohibited drugs. A clinical psychologist's report documented extensive polysubstance dependence, the escalation of which was linked to the traumatic disappearance and presumed murder of his younger brother in 2002. Mitigating features included an early guilty plea, voluntary assistance to authorities in a murder prosecution, close family support, and an emerging period of abstinence from drugs and alcohol.

  • Whether the sentencing judge erred by finding that the applicant was on conditional liberty at the time of the offence, treating that as an aggravating circumstance
  • Whether that error, if established, warranted a reduction in the sentence
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal found that the sentencing judge had made an error of fact by treating the applicant's status as being on conditional liberty as an aggravating factor. This finding was not supported by the material before the sentencing court, and the error resulted in the imposition of a more severe sentence than was warranted. The error was therefore a proper basis for appellate intervention.

Having identified error, the Court proceeded to resentence the applicant. Garling J, with whom McClellan CJ at CL and Davies J agreed, took into account the objective seriousness of the offence, the applicant's significant criminal history, his subjective circumstances, and the progress he had made while in custody. Those circumstances included approximately eight months of abstinence from drugs and alcohol, completion of an emotional regulation program, ongoing employment in custody, and placement on waiting lists for further rehabilitation programs.

The Court accepted that the sentencing judge's finding of special circumstances was not challenged and was justified on the facts, permitting a departure from the statutory ratio between non-parole period and total sentence. The resulting sentence was meaningfully shorter than the original, reflecting the identified error and the applicant's demonstrated steps toward rehabilitation, while still accounting for the seriousness of the conduct and his prior history.

Orders Made

  • Leave to appeal granted
  • Sentence imposed by Charteris DCJ on 14 April 2011 quashed
  • Applicant resentenced to a non-parole period of 2 years and 6 months, commencing 23 June 2010 and concluding 22 December 2012
  • Balance of term of 1 year and 3 months, concluding 22 March 2014
  • First eligible release date noted as 23 December 2012

Key Takeaways

  • A factual error in identifying an aggravating circumstance at sentence, specifically a finding that the offender was on conditional liberty when no such status existed, constitutes a ground for appellate intervention and resentencing.
  • Where error is established, the Court of Criminal Appeal will resentence the applicant afresh, considering all relevant factors including post-sentence conduct and rehabilitation progress.
  • The Court of Criminal Appeal confirmed that voluntary assistance to authorities in serious criminal proceedings, including offering to give evidence in a murder trial, is a recognised mitigating factor at sentence.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, special circumstances must be identified to justify a non-parole period that represents less than the standard three-quarters ratio; the finding of special circumstances by the original sentencing judge was unchallenged and upheld on resentencing.
  • Progress made while in custody, including sustained abstinence, program participation, and employment, formed part of the resentencing calculus, though it did not override the weight attached to the seriousness of the offence and the applicant's prior criminal history.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
- Criminal Appeal Act 1912 (NSW)

Cases cited: No cases were cited in the portions of the judgment provided.