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Court of Criminal Appeal 16 December 2013

Cao v Regina

[2013] NSWCCA 321

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTING EXCESSIVE NO ERROR OF PRINCIPLE APPEAL DISMISSED.

Citation: Cao v Regina [2013] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 16 December 2013
Judge(s): Hoeben CJ at CL (principal judgment), Simpson J, Hall J (both agreeing)

Background

The appellant pleaded guilty in the District Court to a range of serious offences: supplying methylamphetamine on an ongoing basis, supplying methylamphetamine in a commercial quantity, possessing two prohibited weapons, and possessing two unauthorised firearms. The offending arose from an investigation in early 2012, during which police intercepted telephone calls revealing the appellant had sold a total of 127 grams of methylamphetamine to an intermediary on 39 occasions over roughly three weeks.

When police arrested the appellant and searched his home, they found a further 749.6 grams of methylamphetamine packaged for supply, multiple mobile phones, significant cash, digital scales, balaclavas, and several firearms including a rifle, a self-loading pistol, and a concealed key-ring style double-barrelled pistol. The appellant admitted to police in a recorded interview that he purchased and on-sold the drug at a substantial profit, and explained the firearms were kept for self-protection while dealing in large quantities of drugs.

The sentencing judge imposed a total effective sentence of eight and a half years imprisonment with a non-parole period of five and a half years. The sentences were accumulated (that is, set to run one after another, rather than concurrently), reflecting the discrete nature of each serious offence. The appellant sought leave to appeal on the sole ground that the total sentence was manifestly excessive.

  • Whether the total effective sentence of eight and a half years, achieved through accumulation of individual sentences, was manifestly excessive.
  • Whether the sentencing judge erred in the extent of accumulation applied across the drug supply and firearms offences.

Decision

Hoeben CJ at CL, with whom Simpson J and Hall J agreed, dismissed the appeal. Applying the test confirmed in Dinsdale v The Queen (2000) 202 CLR 321, the court assessed whether the sentence was "unreasonable or plainly unjust." No specific error of principle was identified in the sentencing judge's approach, and the appeal therefore could not succeed merely by demonstrating that a different result might have been reached.

The court emphasised the objective seriousness of the firearms offences. Possession of firearms in connection with drug dealing aggravates criminality, as this Court has previously held in R v Amurao and R v Dusan Krstic. The key-ring style concealed pistol, incapable of lawful use, was treated as a particularly serious example. The court reiterated that courts should discourage firearms from becoming tools of trade for those operating outside the law.

The court accepted that the sentencing judge correctly identified the need for some accumulation given the discrete and serious nature of each offence. The extent of that accumulation was a matter of discretion for the primary judge, and the Court of Criminal Appeal found the degree of accumulation modest rather than excessive in the circumstances. The starting figure of eleven years and four months, reduced by twenty-five percent for the guilty pleas to produce the net sentence, was consistent with the objective gravity of the conduct.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess requires a sentence to be "unreasonable or plainly unjust" before appellate intervention is warranted; disagreement with the result alone is insufficient.
  • Where no specific error of principle is identified in a sentence appeal, an accumulation of sentences cannot be disturbed simply because a different approach was open to the sentencing judge.
  • Possession of firearms in the course of drug dealing constitutes a significant aggravating factor, and courts have consistently held that firearms must not become routine instruments of the illegal drug trade.
  • A sentencing court retains a broad discretion in determining the extent of accumulation across discrete serious offences, and that discretion will not be interfered with on appeal absent demonstrated error.
  • Under s 7(1) of the Firearms Act 1996 and the Weapons Prohibition Act 1998, the legislative policy is to deter and punish possession of firearms per se; an offender's claimed protective motive carries little or no mitigating weight.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 527C(a)

Cases:
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- House v The King [1936] HCA 40; 55 CLR 499
- R v Amurao [2005] NSWCCA 32
- R v Dusan Krstic [2005] NSWCCA 391
- R v Najem [2008] NSWCCA 32
- Ayshow v R [2011] NSWCCA 240