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Court of Criminal Appeal 31 October 2013

Dang v R

[2013] NSWCCA 246

Drugs
CRIMINAL LAW GUILTY PLEA APPEAL ALLOWED SENTENCE QUASHED SENTENCED

Citation: Dang v R [2013] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 31 October 2013
Judges: Basten JA, Adams J, Latham J

Background

The appellant pleaded guilty to two counts of manufacturing methylamphetamine, five counts of possessing a precursor intended for drug manufacture, and one count of possessing drug manufacture apparatus. The offences arose from two separate incidents approximately 21 months apart: one at a Surry Hills unit in July 2009, and a second at a Hurstville unit in April 2011. The appellant was on bail for the Surry Hills offences when he committed the Hurstville offences.

The sentencing judge in the District Court found that the manufacturing was not commercially motivated, but was driven by the appellant's addiction to methylamphetamine. Despite that finding, sentences were accumulated across the two groups of offences, with the Hurstville sentences commencing after a period of mandatory custody referable solely to the Surry Hills offences.

The appellant sought leave to appeal, arguing that the individual and aggregate sentences were manifestly excessive, that the degree of accumulation amounted to double punishment for breaching conditional liberty, and that his addiction improperly failed to reduce his moral culpability in the sentencing exercise.

  • Whether imposing longer sentences for offences committed whilst on bail, combined with additional accumulation, constituted impermissible double punishment for the breach of conditional liberty.
  • Whether the sentencing judge's finding of no commerciality was adequately reflected in the sentences imposed.
  • Whether addiction to the drug being manufactured reduced the appellant's moral culpability, and whether that reduction was properly accounted for.
  • Whether the individual and aggregate sentences were manifestly excessive.
  • Whether the balance of term adequately reflected a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court granted leave to appeal but the majority (Adams J and Latham J) ultimately dismissed the appeal. On the double punishment ground, the Court found the submission misconceived. The proper question was whether the total criminality and total sentences bore an appropriate relationship, not whether distinct sentencing steps each referenced the breach of bail. The level of accumulation was open to the sentencing judge given the seriousness of the offending, the variety of charges, and the need for both general and specific deterrence.

On the question of addiction and moral culpability, Basten JA (in the minority on outcome) expressed the view that the sentencing judge had not adequately reflected the non-commercial nature of the offending or the role of addiction in reducing moral culpability. His Honour considered that where manufacture is motivated entirely by personal addiction rather than financial gain, this distinction should carry meaningful weight in sentencing, though he acknowledged it does not eliminate the need for deterrence.

The majority disagreed that any sentencing error was established. Latham J and Adams J each found that, given the quantities of drugs involved, the commission of further offences while on bail, and the need for deterrence, the sentences were within the available discretion. The aggregate sentences for the Surry Hills and Hurstville offences were not shown to be plainly unjust, even if a different approach might have been taken.

On the special circumstances issue, the Court confirmed that under the pre-2011 amendment framework, where multiple sentences were accumulated, it was commonplace and appropriate for a judge to find special circumstances to achieve a balance of term approximating one-third of total mandatory custody. The 2011 amendment permitting aggregate sentences was not engaged here, as no aggregate sentence had been imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a claim of "double punishment" for breach of conditional liberty does not arise simply because a sentencing judge both imposes a longer sentence for offences committed on bail and applies a degree of accumulation. The relevant inquiry is whether the total sentence bears appropriate relativity to the total criminality.
  • Where multiple sentences are accumulated under the pre-2011 framework, a finding of special circumstances to achieve a proportionate balance of term remains appropriate and does not itself indicate error.
  • The distinction between manufacture for personal use driven by addiction and manufacture for commercial gain is a recognised sentencing consideration, but its weight is contested. Basten JA held it should meaningfully reduce moral culpability; the majority found insufficient error to warrant intervention on the facts.
  • No error was established in the degree of accumulation where the offending was serious, repeated, involved significant quantities of a dangerous drug, and was committed whilst the offender was on bail for identical conduct.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the aggregate sentence provisions (s 44(2A) and (2B)) apply only where a judge expressly imposes an aggregate sentence; they have no application where individual sentences are accumulated in the conventional way.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 44(2A), 44(2B)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Elias v The Queen; Issa v The Queen [2013] HCA 31
- R v Day (1998) 100 A Crim R 275
- Louizos v R [2009] NSWCCA 71; 194 A Crim R 223
- R v AD [2008] NSWCCA 289; 191 A Crim R 409
- R v Cheung; R v Choi [2010] NSWCCA 244
- Petterson v R [2013] NSWCCA 133
- AB v R [2013] NSWCCA 160
- Bowden v R [2009] NSWCCA 45
- Cicciarello v Regina [2009] NSWCCA 272
- Diesing & Ors v R [2007] NSWCCA 326
- Hudson v R [2009] NSWCCA 59
- R v Dang [2005] NSWCCAS 430