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Court of Criminal Appeal 27 September 2013

Eckersley v R

[2013] NSWCCA 219

Drugs
CRIMINAL LAW PLEA OF GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE LEAVE REFUSED.

Citation: Eckersley v R [2013] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 27 September 2013
Judges: Hoeben CJ at CL, Latham J, Bellew J

Background

The applicant pleaded guilty in the District Court to three serious drug offences: knowingly taking part in the manufacture of not less than a large commercial quantity of MDMA, knowingly taking part in the manufacture of not less than a large commercial quantity of methylamphetamine, and supplying not less than a large commercial quantity of methylamphetamine. Four additional offences were taken into account on a Form 1 (a mechanism by which further charges are considered at sentencing without additional convictions being recorded). Each principal offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The applicant played a "very significant and managerial organisational" role in two separate drug manufacturing operations: one at Blackett producing methylamphetamine, and another at Erskine Park producing MDMA. The Erskine Park laboratory held sufficient raw product to produce at least 250,000 MDMA tablets. The Blackett premises contained purchase records for chemicals valued at $617,000 and over 2,000 grams of methylamphetamine in a safe.

The sentencing judge imposed 18 years with an 11-year non-parole period on count one, and 12 years with an eight-year non-parole period on each of counts two and three. The sentences for counts two and three ran entirely concurrently with each other, but were accumulated on count one by three years, producing an aggregate sentence of 21 years with a 14-year aggregate non-parole period. The applicant sought leave to appeal that overall sentence.

  • Whether the sentencing judge made a positive finding that vulnerability of potential users (including children) was an aggravating feature of the offending, and whether that finding was erroneous
  • Whether the sentencing judge erred in the extent of accumulation of the sentences for counts two and three upon the sentence for count one
  • Whether the aggregate sentence of 21 years with a 14-year non-parole period was manifestly excessive

Decision

Ground 1: Aggravating feature concerning vulnerable users

Latham J rejected the contention that the sentencing judge had identified the possible consumption of drugs by vulnerable persons, including children, as an aggravating feature. The remarks in question were made almost in passing and did not use the language that would be expected had the judge intended to identify a formal aggravating circumstance. The observation was properly understood as a reference to the capacity of the drug to cause harm across the community. The Court noted that youth consumption of ecstasy is a notorious fact, and there was no error in acknowledging the nature and extent of that harm.

Grounds 2 and 3: Extent of accumulation and manifest excess

The Court treated these grounds together. The applicant accepted that some accumulation was appropriate given that counts one and two concerned different prohibited drugs, but argued the three-year accumulation was too large and that the broadly similar nature of the two offences warranted minimal separation. The Court found these submissions failed to engage with the only proper bases for intervention: a demonstrated material error in the sentencing judge's reasoning, or an aggregate sentence that was plainly unjust.

Latham J emphasised that the maximum penalty for all three offences was life imprisonment, the standard non-parole period was 15 years on each count, and the applicant had played a central role in manufacturing two distinct drugs in two distinct locations over an extended period. Notably, the aggregate non-parole period of 14 years was actually less than the standard non-parole period applicable to each individual offence. The aggregate sentence of 21 years represented only a modest increase above the sentence for count one alone. The Court was not persuaded that the overall sentence fell outside the range of a legitimate sentencing discretion.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • A sentencing judge's general observation about the capacity of manufactured drugs to harm vulnerable members of the community, including children, does not necessarily constitute a formal finding of an aggravating circumstance under sentencing principles.
  • The Court of Criminal Appeal confirmed that intervention in a sentencing discretion on accumulation grounds requires either an identifiable material error in the sentencing reasons or an aggregate sentence that is plainly unjust; disagreement about the degree of accumulation alone is insufficient.
  • In assessing manifest excess in multi-count drug manufacturing sentences, relevant considerations include the maximum penalty and standard non-parole period for each offence, the offender's role, the number and distinctness of the criminal enterprises, and the relationship between the aggregate non-parole period and the applicable standard non-parole periods.
  • An aggregate non-parole period that falls below the standard non-parole period applicable to each individual principal offence is a factor weighing against a finding of manifest excess.
  • No error was established in any of the three grounds advanced, and the application for leave to appeal was refused unanimously.

Legislation and Cases Referenced

Legislation
- No specific legislation was cited in the provided judgment text. The offences and penalties referred to relate to New South Wales drug manufacturing and supply provisions (the specific Acts and sections were not identified in the judgment as provided).

Cases
- No cases were cited in the provided judgment text.