AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 5 July 2013

AB v R

[2013] NSWCCA 160

DrugsFraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE COMMERCIAL SUPPLY OF PROHIBITED DRUGS DEALING WITH THE PROCEEDS OF CRIME TWO STAGE APPROACH BY SENTENCING JUDGE

Citation: AB v R [2013] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 5 July 2013
Judges: Hoeben CJ at CL, Adams J, Beech-Jones J

Background

The appellant pleaded guilty to two drug supply offences under the Drug Misuse and Trafficking Act 1985, including the commercial supply of 296.9 grams of methylamphetamine at 79 per cent purity. He was sentenced in May 2010 to a head sentence of 7 years and 6 months with a non-parole period of 5 years and 5 months for the commercial supply, with additional offences taken into account on a Form 1 (a procedure where related offences are acknowledged at sentencing without forming separate charges). A further sentence was imposed in February 2012 for dealing with the proceeds of crime.

The combined effective sentence was 9 years and 2 months with a non-parole period of 6 years and 8 months. The offending occurred while the appellant was on bail for similar earlier offences and formed part of an ongoing drug supply business involving very large sums of cash as proceeds of crime.

The appellant sought leave to appeal only against the sentence for the commercial supply, arguing that the sentencing judge had applied the standard non-parole period in an erroneous two-stage manner inconsistent with the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120.

  • Whether the sentencing judge erred by giving undue or dominant weight to the standard non-parole period when sentencing for the commercial supply offence, contrary to Muldrock.
  • Whether, even if such error was established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • Whether financial reward for drug supply constitutes an aggravating feature or merely an inherent characteristic of the offence.
  • Whether, in assessing s 6(3), the court should consider sentences not subject to the appeal alongside the sentence under challenge.

Decision

All three judges agreed that the sentencing judge had committed the Muldrock error: she had treated the standard non-parole period in a two-stage, dominant manner rather than as one of two legislative guideposts to be weighed alongside all relevant circumstances. Leave to appeal was granted and the appeal was formally allowed on this basis.

The judges diverged, however, on whether a lesser sentence was warranted. Adams J considered that a reduced sentence was appropriate. Hoeben CJ at CL and Beech-Jones J disagreed, concluding that the original sentence remained within the proper discretionary range given the quantity and purity of the drugs, the appellant's role, the degree of planning, the ongoing nature of the trafficking, and the fact that the offending occurred while the appellant was on bail for similar conduct.

On the question of financial reward as an aggravating feature, Adams J expressed the view that this is an inherent characteristic of commercial drug supply rather than a separately aggravating circumstance. The majority did not need to resolve this issue definitively in order to dispose of the appeal.

The court also acknowledged, without fully resolving, the question of whether s 6(3) of the Criminal Appeal Act requires consideration of all sentences an offender is serving or only those the subject of the appeal. Beech-Jones J found it unnecessary to decide that point, given his conclusion that no lesser sentence was warranted in any event. The sentence was adjusted by the full court solely to correct the commencement date to account for time the appellant spent in custody before being granted bail.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence on count 2 quashed and substituted: imprisonment with a non-parole period of 5 years and 4 months commencing 1 July 2008, expiring 1 November 2013, with a balance of term of 2 years and 1 month expiring 1 December 2015.
  • The February 2012 sentence varied to commence on 1 November 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Muldrock error, applying the standard non-parole period as a dominant benchmark rather than one of two guideposts, constituted legal error in this sentence.
  • Establishing a Muldrock error does not automatically result in a lesser sentence: under s 6(3) of the Criminal Appeal Act 1912, the court must still be satisfied that a lesser sentence is "warranted in law" before substituting a reduced term.
  • Where the totality of the offending, including quantity and purity of drugs, the offender's role, ongoing trafficking, and commission of offences while on bail, places the sentence firmly within the proper discretionary range, the original sentence may be confirmed despite the identified error.
  • Adams J's reasoning raises a question, not finally resolved by the court, about whether financial reward from drug supply should be treated as an aggravating factor or as an inherent feature of commercial supply offences already reflected in the maximum penalty.
  • A minor correction to the sentence commencement date was warranted to credit the period spent in custody before bail was granted, illustrating that technical adjustments of this kind remain available even where the substantive sentence is upheld.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 37
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149
- Pearce v R (1998) 194 CLR 610
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bowden v R [2009] NSWCCA 45
- Couloumbis v R [2012] NSWCCA 264
- Elyard v R [2006] NSWCCA 43
- Kerr v R [2008] NSWCCA 133
- Marinellis v The Queen [2006] NSWCCA 307
- McMahon v R [2011] NSWCCA 147
- R v Bottin [2005] NSWCCA 254
- R v Dang [2005] NSWCCA 430
- R v Georgiou [2005] NSWCCA 237
- R v Grube [2005] NSWCCA 140
- R v Kaldor (2004) 158 A Crim R 271