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Court of Criminal Appeal 28 November 2013

Kassis v R

[2013] NSWCCA 298

Drugs
CRIMINAL LAW SENTENCING DRUG MISUSE AND TRAFFICKING ACT 1985

Citation: Kassis v R [2013] NSWCCA 298
Court: Court of Criminal Appeal, NSW
Date: 28 November 2013
Judges: Hoeben CJ at CL, Blanch J, Price J

Background

The appellant pleaded guilty in the Local Court to two drug supply offences and confirmed those pleas in the District Court. The first count involved supplying 24.6 grams of cocaine; the second involved supplying a large commercial quantity of ecstasy (997.5 grams, with a purity of 82.5%). Two further matters were taken into account on a Form 1, including dealing with suspected proceeds of crime ($32,000 cash) and possessing a prohibited restricted substance.

The District Court sentenced the appellant to a fixed term of 15 months for the first count and 8 years 6 months for the second count, with the sentences partially accumulated to produce a total of 9 years from 20 March 2012. A non-parole period of 5 years 6 months was set. The appellant was 29 years old at the time of sentencing and had no prior criminal history.

The appellant sought leave to appeal on the basis that the sentencing judge had failed to properly take his pleas of guilty into account. Specifically, the complaint was that the judge's remarks on sentence made no explicit reference to having applied a discount for the pleas.

  • Whether the sentencing judge erred by failing to explicitly state that a discount for the pleas of guilty had been applied
  • Whether the sentences themselves demonstrated that no discount had in fact been applied, notwithstanding that the Crown had conceded a 25% utilitarian discount

Decision

Blanch J (with whom Hoeben CJ at CL and Price J agreed) acknowledged the established principle from R v Thomson and Houlton that a sentencing judge should explicitly state that a plea of guilty has been taken into account, and that failure to do so will generally be taken to indicate no weight was given to it. However, the Court accepted that failure to quantify or even mention a discount does not, by itself, establish error.

The Court reasoned that the Crown had expressly conceded a 25% utilitarian discount during the sentencing proceedings. In those circumstances, it was difficult to conclude that an experienced judge had simply overlooked the significance of the pleas, particularly given that the total sentence was within the accepted range for offences of this kind.

Blanch J tested the proposition arithmetically. A total sentence of 9 years is consistent with a starting point of 12 years reduced by 25%. That 12-year starting point was not unreasonable given the maximum penalty of life imprisonment for the second count, the standard non-parole period of 15 years, and the serious commercial quantity of drugs involved. Conversely, if the discount had been forgotten and then applied to the 9-year sentence, the result (approximately 6 years 10 months) would have been manifestly inadequate for offences of this gravity.

Applying section 6(3) of the Criminal Appeal Act 1912, the Court concluded that no less severe sentence was warranted in law. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that failing to explicitly state a discount for a guilty plea does not automatically establish sentencing error; the relevant question is whether, viewed in context, the discount was in fact applied.
  • Where the Crown itself conceded a discount during sentencing proceedings, an inference that an experienced judge simply overlooked it will be difficult to sustain.
  • A useful method for testing whether a discount was overlooked is to work backwards from the sentence imposed: if the sentence is consistent with a starting point reduced by the agreed discount, that supports a finding that the discount was applied.
  • Equally, if applying the agreed discount to the sentence as imposed would produce a manifestly inadequate result, that further confirms the discount was incorporated at the outset rather than omitted.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court will not intervene unless a less severe sentence is warranted in law; the sentencing range for the offences here, involving a large commercial quantity of ecstasy, supported the total sentence imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Lawrence [2005] NSWCCA 91