Citation: Mammone v R [2013] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 2 May 2013
Judges: Latham J (primary judgment); Button J and Grove AJ (agreeing)
Background
The applicant pleaded guilty to manufacturing a commercial quantity of methylamphetamine and knowingly taking part in the supply of not less than a commercial quantity of methylamphetamine. The offences arose from a police investigation into a clandestine drug laboratory operating at a rural property near Marulan, south of Sydney, between late 2009 and early 2010. Several members of the applicant's extended family and associates were also involved.
The applicant was sentenced to an aggregate term of 10 years with a non-parole period of 6 years and 8 months. Eight further offences, including possession of a loaded firearm in a public place, cocaine supply charges, possession of false instruments, and dealing with proceeds of crime, were taken into account on a Form 1 (a schedule of additional matters considered at sentencing without separate conviction).
The applicant sought leave to appeal against sentence, arguing that the sentences were too severe, that the sentencing judge had misjudged the objective gravity of the offences, and that the sentences were unjustifiably disparate compared with those imposed on co-offenders.
Legal Issues
- Whether there is a meaningful distinction between the appellate test of a sentence being "too severe" under s 6(3) of the Criminal Appeal Act 1912 and the established test of "manifest excess"
- Whether the sentencing judge correctly assessed the objective gravity of the manufacture and supply offences
- Whether the sentencing judge erred in treating the supply arrangements as an aggravating factor on the manufacture charge
- Whether the sentences imposed on the applicant were unjustifiably disparate compared with sentences given to co-offenders Romeo and Minard
Decision
On the "too severe" versus "manifestly excessive" distinction: The Court rejected the applicant's submission that "too severe" under s 6(3) of the Criminal Appeal Act 1912 represents a different and somewhat lower threshold than "manifestly excessive." Latham J held that any sentence appeal begins with identifying error, either patent or specific. Where no specific error is identified, the court may still intervene if the sentence is unreasonable or plainly unjust, and that standard is properly described as manifest excess. The phrases "too severe" and "manifestly excessive" are used interchangeably in appellate practice, and no meaningful distinction exists between them. Grove AJ expressly associated himself with those remarks.
On objective gravity and the supply as an aggravating factor: The Court found no error in the sentencing judge's assessment of the offences as falling within the mid-range of objective gravity. The applicant had a significant organisational role, the manufacturing operation ran over an extended period involving multiple participants, and the quantity of drug manufactured was substantial. The Court also rejected the argument that the supply arrangements were improperly treated as a separate aggravating feature of the manufacture offence.
On parity with co-offender Romeo: Romeo received a lesser sentence reflecting a meaningfully different profile: his role was more limited, he had no Form 1 offences taken into account at sentencing, he had only minor prior convictions, and his significant assistance to authorities attracted a reduction. The Court found that the disparity was justified by these differences in culpability and background, and did not give rise to a justifiable sense of grievance on the applicant's part.
On parity with co-offender Minard: Minard was characterised as a hired "cook" who worked for a daily wage at the direction of others, entered the enterprise late, had no prior association with the principals, and was not on conditional liberty at the time of the offending. His notional starting point before a 25% guilty plea discount appropriately reflected his lesser culpability relative to the applicant. The Court found no basis to intervene on this ground either.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- In the Court of Criminal Appeal, the statutory language "too severe" in s 6(3) of the Criminal Appeal Act 1912 does not create a threshold distinct from "manifestly excessive": the two expressions are used interchangeably, and the established appellate test for identifying unreasonable or plainly unjust sentences remains the applicable standard.
- Disparity between sentences imposed on co-offenders does not automatically give rise to appellate intervention. Differences in age, background, criminal history, role in the offence, assistance to authorities, and the presence or absence of Form 1 matters can all justify what might otherwise appear to be an unequal outcome.
- A hierarchical role in an ongoing drug manufacturing operation, combined with a substantial quantity of drug and a range of associated offending on a Form 1, supports a mid-range or higher assessment of objective gravity, even where the actual product was never seized by police.
- No error was established in any of the seven grounds agitated by the applicant, confirming that the sentencing discretion had been exercised within proper bounds.
- Under Markarian v R and Hili v The Queen, the appellate court's power to re-sentence arises only where specific error is identified or where the sentence is so unreasonable as to imply error, and neither condition was satisfied here.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Markarian v R [2005] HCA 25
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- House v The King [1936] HCA 40
- Collier v R [2012] NSWCCA 213
- Hristovski v R [2010] NSWCCA 129
- Lipchin v R [2013] NSWCCA 77
- SGJ v R; KU v R [2008] NSWCCA 258