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Court of Criminal Appeal 8 November 2013

Greenaway v R

[2013] NSWCCA 270

Drugs
CRIMINAL LAW SENTENCE APPEAL WELL PLANNED AND ORGANISED OPERATION ASSERTED MULDROCK ERROR PAROLE PERIOD EQUATED TO STANDARD NON ERROR ESTABLISHED

Citation: Greenaway v R [2013] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judge(s): Gleeson JA, R A Hulme J, Adamson J

Background

The appellant had pleaded guilty in the District Court at Parramatta to two offences: knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine, and possessing a precursor chemical intended for use in drug manufacture. Police and the Australian Crime Commission had investigated a planned, organised operation involving the appellant and several co-offenders. A working clandestine laboratory was found at a Sydney property, where approximately 5.8 kilograms of methylamphetamine had already been manufactured, along with 14.6 kilograms of pseudoephedrine.

The sentencing judge found the appellant was a central organiser of the operation, driven by greed rather than addiction, and that the activity was far from isolated. The appellant was sentenced to 15 years 6 months imprisonment for the manufacturing offence, with the non-parole period set at exactly three-quarters of that term. The manufacturing offence carries a standard non-parole period of 15 years under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant filed a notice of application for leave to appeal almost three years after sentence, a delay described by the Court as "deplorable," though the Registrar had already granted an extension of time.

  • Whether the sentencing judge applied the standard non-parole period incorrectly by treating it as an effective starting point rather than a guidepost, constituting what is known as "Muldrock error"
  • Whether, if such an error was established, a lesser sentence was nonetheless warranted having regard to the overall circumstances, including the sentences imposed on co-offenders

Decision

The Court found that Muldrock error had been established. The sentencing judge's approach revealed that he had arrived at a head sentence for the manufacturing offence for which the notional non-parole period equated precisely to the standard non-parole period, and only then reduced the sentence for mitigating factors. This two-step methodology was inconsistent with the approach mandated by the High Court in Muldrock v The Queen (2011) 244 CLR 120, which requires courts to treat the standard non-parole period as a guidepost rather than a primary determinant.

Despite identifying the error, the Court declined to impose a lesser sentence, invoking section 6(3) of the Criminal Appeal Act 1912 (NSW). That provision permits the Court of Criminal Appeal to dismiss an appeal even where error is found, if it is satisfied that no lesser sentence is warranted. The Court was so satisfied in this case.

The comparison with co-offenders was central to that conclusion. The appellant and his co-principal, Reardon, were found by the sentencing judge to be at an identical level of culpability. Reardon had already appealed his sentence, with no Muldrock error raised or established, and his sentence stood. The sentences of the two more minor co-offenders, McGreevy and Callager, also disclosed no Muldrock error on their face. The Court found that the significant seriousness of the offending, combined with the co-offender comparisons, drove it to conclude that a lesser sentence could not be justified.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing approach which effectively uses the standard non-parole period as an anchoring starting point, before discounting for mitigating factors, constitutes Muldrock error.
  • Establishing Muldrock error does not automatically produce a reduction in sentence. Under section 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may dismiss an appeal even where sentencing error is found, if no lesser sentence is warranted on the facts.
  • Sentences imposed on co-offenders remain a significant comparator when the Court of Criminal Appeal assesses whether re-sentencing would produce a different result, even where those sentences were imposed in the "R v Way era," provided they do not themselves disclose appellable error.
  • Where a co-offender's appeal has already been heard and dismissed by the Court of Criminal Appeal after Muldrock was decided, without any Muldrock ground being raised, that co-offender's sentence remains available for parity comparison.
  • In dismissing the appeal, the Court treated new evidence of the appellant's good prison conduct, family support, and personal hardship as insufficient to alter the sentencing outcome, given the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Reardon v R [2012] NSWCCA 46
- Bolt v R [2012] NSWCCA 50
- Zreika v R [2012] NSWCCA 44
- R v DW [2012] NSWCCA 66
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v El-Azzi [2004] NSWCCA 455
- R v Pedavoli [2002] NSWCCA 87; (2002) 128 A Crim R 137
- Diesing v R [2007] NSWCCA 326
- R v Larsson (unreported, NSWCCA, 11 September 1997)