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Court of Criminal Appeal 25 June 2013

Tabuan v R

[2013] NSWCCA 143

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE ERROR FOUND WHETHER LESSER SENTENCE WARRANTED PARITY

Citation: Tabuan v R [2013] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 25 June 2013
Judges: Hoeben CJ at CL; Harrison J; Beech-Jones J

Background

The applicant was convicted by jury on a single count of knowingly taking part in the supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985. The jury acquitted him on a more serious charge under s 25(2) involving a commercial quantity (460 grams) of methylamphetamine. He was sentenced to 2 years and 2 months imprisonment with a non-parole period of 16 months.

The applicant's role on the day of the offence was limited and late-emerging. He drove to the transaction site at a Marrickville shopping centre car park as part of a convoy from a West Ryde business premises. The Crown alleged he provided security for the drug transaction. There was no direct evidence he witnessed any handling of the drugs, was privy to discussions about the quantity, or received any financial reward.

At sentencing, the District Court judge found that the applicant was aware the drug transaction was "substantial" and involved approximately 150 grams of methylamphetamine, and that he participated for financial gain. The applicant challenged those findings and the resulting sentence on appeal.

  • Whether the sentencing judge had a sufficient evidentiary basis to find that the applicant knew the drug transaction was "substantial" and involved approximately 150 grams of methylamphetamine
  • Whether the sentencing judge placed excessive weight on that quantity finding
  • Whether the applicant was denied procedural fairness by not being given the opportunity to make submissions about the quantity finding before it was made
  • Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and that imposed on a co-accused, Joel Tongol

Decision

Grounds 1 and 2: Knowledge of quantity

The Court of Criminal Appeal accepted that errors had occurred in the sentencing judge's reasoning. The jury's acquittal on the commercial quantity charge established that the jury was not satisfied beyond reasonable doubt that the applicant knew the transaction involved 460 grams. The sentencing judge was therefore constrained: any factual finding at sentence had to be consistent with that verdict and supported by the evidence to the criminal standard. The Court found the inferential reasoning used to arrive at "150 grams" lacked an adequate evidentiary foundation, and the finding that the applicant participated for financial gain was similarly unsupported by any evidence on the record.

Ground 3: Procedural fairness

The Court acknowledged the sentencing judge made his quantity finding without inviting submissions from the applicant on that point. Given the errors already identified, the Court did not need to resolve this ground conclusively, though the concern was noted.

Whether resentencing was warranted

Despite finding those errors, the Court declined to intervene. The sentence of 2 years and 2 months was not shown to be outside the proper sentencing range, even setting aside the flawed findings. The sentencing judge had access to numerous sentencing discretions and, in the Court's view, could have arrived at the same sentence by a valid route. Where a sentence is otherwise proper when viewed in its entirety, the Court held it is not appropriate to make minor adjustments merely to acknowledge an identified error that did not infect the ultimate outcome.

Ground 4: Parity

The Court rejected the parity argument. The co-accused Tongol had received a sentence that was, on one view, notably lenient, given he had been sentenced for a more serious s 25(2) offence with additional matters on a Form 1. A comparatively favourable outcome for a co-accused does not, without more, render another's sentence unfairly harsh.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge following a jury verdict must make findings consistent with that verdict, and any adverse factual finding must be supported by evidence to the criminal standard. The Court of Criminal Appeal confirmed that the acquittal on the commercial quantity charge constrained what the sentencing judge could legitimately find about the applicant's knowledge.

  • Identifying error in a sentencing judge's reasoning does not automatically warrant resentencing. Where the sentence imposed falls within the proper range independently of the flawed findings, the appellate court may decline to substitute a lesser sentence.

  • A co-accused receiving a lenient sentence does not, of itself, give a differently situated applicant a justifiable sense of grievance. The Court of Criminal Appeal noted that an arguably fortunate outcome for one offender is not a reliable benchmark for assessing the fairness of another's sentence.

  • Under the principles confirmed in Cheung v The Queen (2001) 209 CLR 1, the sentencing judge determines the relevant facts, but remains bound not to act on findings that contradict or go beyond what the jury's verdict permits.

  • Appellate courts approach errors identified on "quiet reflection" with some recognition of the pressures under which District Court judges operate. The Court observed that minor adjustments to correct technical error are not warranted where the overall sentence remains sound.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)

Cases
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1