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Court of Criminal Appeal 22 November 2013

White v R

[2013] NSWCCA 242

Drugs
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE APPLICANT WITH MENTAL HEALTH ISSUES WHETHER MULDROCK ERROR WHETHER SENTENCE MANIFESTLY EXCESSIVE LOW PURITY OF DRUG.

Citation: White v R [2013] NSWCCA 242
Court: Court of Criminal Appeal, NSW
Date: 22 November 2013
Judge(s): Macfarlan JA, Hidden J, Davies J

Background

The applicant pleaded guilty in Gosford Local Court to supplying a large commercial quantity of methylamphetamine, namely 3.333 kilograms of a low-purity substance (4.5% and 6.5% pure) found at his Terrigal property during a police search in May 2010. He also asked the court to take into account seven further offences on a Form 1, including possession of a Taser, drug precursors, and drug manufacturing apparatus.

In August 2011, Judge Ellis of the District Court sentenced the applicant to a non-parole period of six years and three months, with an additional term of three years and six months, after allowing a 25% discount for an early guilty plea. The standard non-parole period for the offence was 15 years, with a maximum penalty of life imprisonment.

The applicant sought leave to appeal against the sentence, relying substantially on his diagnosed mental health conditions (Bipolar Affective Disorder, Type One, Rapid Cycling, and substance abuse disorder), the low purity of the drug, and the sentencing judge's references to the standard non-parole period in a manner alleged to be inconsistent with the High Court's decision in Muldrock v The Queen.

  • Whether the sentencing judge committed a Muldrock error by placing undue or two-staged reliance on the standard non-parole period when assessing the sentence
  • Whether the judge erred in his assessment of the objective seriousness of the offence, including by factoring mental health issues into that assessment
  • Whether the sentence was manifestly excessive, having regard to the low purity of the drug and the applicant's subjective features including mental illness

Decision

Ground 1: Standard non-parole period (Muldrock)
The Court acknowledged that the sentencing judge's remarks contained pre-Muldrock language, including references to the standard non-parole period as a "guidepost" and comments about necessary "relativity" to that figure. However, the Court found that the actual sentence imposed did not demonstrate that this approach had materially affected the outcome. Looking at the sentence holistically, there was no basis for concluding the standard non-parole period had been applied as a de facto starting point in a way that warranted appellate intervention.

Ground 2: Objective seriousness and mental health
The applicant argued that the sentencing judge had improperly considered the applicant's mental health issues when assessing objective seriousness, rather than confining that consideration to moral culpability. The Court found the judge's reference to a causal connection between the mental health issues and the offending was directed at moral culpability, not objective gravity. That distinction, confirmed in McLaren v R, meant no error was established on this ground.

Ground 3: Manifest excess
The Court rejected the submission that the sentence was manifestly excessive. While the drug's low purity was a relevant factor that the sentencing judge acknowledged, the total gross weight of 3.333 kilograms still represented a large commercial quantity with a bulk value estimated between $300,000 and $400,000. The applicant's favourable subjective features, including his mental health conditions and limited prior criminal history, had been considered and appropriately weighed. The seven Form 1 matters were also noted as legitimately bearing upon the overall sentence. The Court concluded the sentence fell within the available discretionary range.

Orders Made

  • Time to file the Notice of Application for leave to appeal extended to 6 March 2013
  • Leave to appeal granted
  • Appeal dismissed
  • Sentence commencement date corrected from 28 May 2010 to 20 May 2010 (typographical correction only; sentence otherwise unchanged)

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that pre-Muldrock language in sentencing remarks does not automatically establish appellate error; the question is whether the language actually infected the sentence imposed.
  • A causal connection between an offender's mental health issues and their offending is properly directed to moral culpability rather than objective seriousness, consistent with the approach in McLaren v R.
  • Low drug purity is a relevant mitigating factor in assessing objective seriousness, but it does not neutralise the significance of a large gross weight where that weight still represents a large commercial quantity with substantial market value.
  • Form 1 offences taken into account at sentencing do not entitle an offender to leniency; they may appropriately increase the sentence on the principal offence.
  • No error was established merely because a sentencing judge's subjective features assessment did not reduce the significance of the standard non-parole period to a negligible level.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Div 1A of Pt IV (ss 54A-54B)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- McLaren v R [2012] NSWCCA 284
- 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
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Bolt v R [2012] NSWCCA 50
- Butler v R [2012] NSWCCA 23
- Efstathiadis v R [2009] NSWCCA 319
- Hamieh v R [2007] NSWCCA 277
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Ly v R [2008] NSWCCA 262
- Mulato v R [2006] NSWCCA 282
- Perdija v R [2012] NSWCCA 244
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Koloamatangi [2011] NSWCCA 288
- R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
- Trevor Essex v R [2013] NSWCCA 11
- Zreika v R [2012] NSWCCA 44