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Court of Criminal Appeal 1 February 2013

Suman v R

[2013] NSWCCA 3

DrugsTheft & propertyFirearms & weapons
CRIME SENTENCING

Citation: Suman v R [2013] NSWCCA 3
Court: Court of Criminal Appeal
Date: 1 February 2013
Judges: Simpson J, McCallum J (principal judgment), Bellew J

Background

The appellant was sentenced in the District Court in February 2012 on six charges, with two further offences taken into account. The charges included two counts of supplying methylamphetamine, receiving stolen property, dealing with the proceeds of crime, possessing a prohibited firearm, and possessing ammunition. He had pleaded guilty to four charges at the earliest opportunity and was found guilty after a defended hearing on the two firearms charges.

The offending involved telephone-intercepted drug transactions, the supply of quantities of methylamphetamine to distributors in Melbourne, and the possession of a handgun and ammunition found in a vehicle at the appellant's residence. At the time of the offences, the appellant was on parole for armed robbery. He was 31 years old at sentencing and had an extensive prior criminal record.

The aggregate sentence imposed was a total of 13 years imprisonment, comprising a non-parole period of nine years and a balance of term of four years. The sentences were structured so that several ran consecutively, beginning with a 12-month fixed term for the proceeds of crime offence.

  • Whether the sentencing judge adopted an impermissible tiered or mathematical approach to sentencing, contrary to Markarian v R
  • Whether the sentencing judge erred in applying the totality principle when structuring the sentences
  • Whether it was an error to make the sentence for dealing with the proceeds of crime wholly consecutive to the other sentences
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. McCallum J delivered the principal judgment, with Simpson and Bellew JJ agreeing.

On the first ground, the Court found no substance in the contention that the sentencing judge had adopted a tiered or mathematical approach. The judge's remarks on sentence did not disclose any impermissible methodology, and this ground did not warrant a grant of leave.

On the totality ground, the Court accepted that applying a discount to individual sentences for totality was one permissible approach, but noted it is not the only acceptable method. The sentencing judge was entitled to address totality by adjusting the degree of accumulation between sentences rather than by reducing individual sentences. No error in the application of the totality principle was established.

The Court rejected the argument that accumulating the proceeds of crime sentence was necessarily erroneous because the drug supply sentences might be said to "comprehend" that criminality. Referring to Cahyadi v R, McCallum J clarified that the relevant question is not whether accumulation was harsh, but whether it was an option not open to the sentencing judge in the exercise of discretion. It was open, and no error was demonstrated. The Court also found that manifest excess in the aggregate sentence was not established, characterising it as stern but within the available range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error is established in a sentencing judge's approach to totality merely because the judge chose to address it through adjusting the degree of accumulation between sentences rather than discounting individual sentences.
  • The Court of Criminal Appeal confirmed that Cahyadi v R does not establish a rule requiring concurrent sentences wherever one sentence could theoretically comprehend the criminality of another; the question is whether the exercise of discretion was within the available range.
  • A sentence may be characterised as stern without meeting the threshold for manifest excess; the appellate court will not intervene simply because a different arrangement of sentences might have been preferable.
  • Accumulating a sentence for a proceeds of crime offence wholly consecutively upon drug supply sentences is not automatically erroneous, even where a connection exists between the offending.
  • Under s 5(1)(c) of the Criminal Appeal Act 1912, leave is required to appeal against sentences, and the Court will decline to grant leave where a ground lacks substance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10, s 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7(1), s 65(3)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66