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12
Court of Criminal Appeal 30 July 2014

Farkas v R

[2014] NSWCCA 141

Also reported as (2014) 243 A Crim R 388
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ONGOING DRUG SUPPLY NO EVIDENCE OF FINANCIAL GAIN USE OF OTHER CASES AS EVIDENCE OF FACT JUDICIAL NOTICE

Citation: Farkas v R [2014] NSWCCA 141
Court: Court of Criminal Appeal, New South Wales
Date: 30 July 2014
Judges: Basten JA at [1]; R A Hulme J at [33]; Campbell J at [41]

Background

The applicant was sentenced in the District Court to four years and six months imprisonment, with a non-parole period of two years and six months, for supplying prohibited drugs on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). He sought leave to appeal against that sentence on five grounds.

Two grounds challenged factual findings made by the sentencing judge: first, that the offence was committed for financial gain; and second, that the applicant's motive was to discharge a drug debt of $22,000. The applicant's own evidence was that he had received drugs for his personal use as payment, and that he owed only $2,350 to his supplier as a consequence of his arrest resulting in the confiscation of drugs and money.

The remaining grounds concerned the sentencing judge's comparison of the drug's purity (between 9% and 12.5%) with what the judge described as "normal street purity" (3% to 5%), which the judge treated as an aggravating circumstance. The applicant challenged both the evidentiary basis for that comparison and the denial of any opportunity to address it before it was relied upon.

  • Whether the sentencing judge erred in treating financial gain as an aggravating feature of the offence where there was no evidentiary basis for that finding, and where financial gain may in any event be an element of the offence itself
  • Whether the sentencing judge made a material factual error in finding that the applicant's motive was to reduce a drug debt of $22,000
  • Whether the sentencing judge could properly draw a comparison between the drug's purity and "normal street purity" without evidence of the latter
  • Whether prior Court of Criminal Appeal judgments could be used as evidence of fact regarding normal street purity
  • Whether the Evidence Act 1995 (NSW) applies to sentencing proceedings, and if not, what evidentiary rules govern judicial notice at sentence
  • Whether the applicant was denied procedural fairness by not being given an opportunity to address the purity comparison before the sentencing judge relied on it

Decision

The Court unanimously granted leave to appeal, allowed the appeal, and resentenced the applicant. All judges agreed that the errors identified in grounds 1, 2, and 4 were made out and were each material to the sentence imposed.

On grounds 1 and 2, the Court accepted that the sentencing judge had misidentified the applicant's motivation. The applicant's evidence was that he had been paid in drugs for personal consumption, not to discharge a $22,000 debt. The multiple references in the judge's reasons to the "drug debt" as an aggravating feature demonstrated it was a significant factor in the sentence. Because those factors could not have been mitigating and were not treated as neutral, it could be inferred that their removal would have produced a lower sentence.

On grounds 3 and 4, the Court held that the purity comparison was not supported by any evidence before the sentencing judge. References in two earlier Court of Criminal Appeal decisions to "normal street purity" did not constitute authority for that fact in later proceedings: findings of fact in prior cases are relevant to precedent and sentencing ranges, but facts in a subsequent case must be established by evidence before that court. Basten JA held, contrary to Campbell J on ground 3, that the finding as to normal street purity could not be sustained as a matter of judicial notice. The concept of normal street purity of methylamphetamine is inherently open to question and is not "common knowledge" within the meaning of s 144 of the Evidence Act, even setting aside whether that provision applies at all to sentencing proceedings.

On the Evidence Act question, the Court noted that, under s 4(2)(a), the Act does not apply to sentencing proceedings unless the court so directs. No direction had been given. The Court referred to the established position from R v Bourchas that the absence of such a direction means the common law of evidence applies, not the Evidence Act itself. On the procedural fairness ground (ground 4), the Court held that the sentencing judge had conducted his own enquiry into normal street purity without giving the applicant any opportunity to respond, which constituted a denial of procedural fairness regardless of which evidentiary regime applied.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 12 June 2013 quashed
  • Applicant resentenced to imprisonment with a non-parole period of 2 years commencing 29 March 2013 and expiring 28 March 2015, with an additional term of 1 year and 7 months commencing 29 March 2015 and expiring 28 October 2016
  • Applicant to become eligible for release on parole on 29 March 2015

Key Takeaways

  • Factual findings at sentence must be grounded in evidence before the sentencing court. Prior decisions of the Court of Criminal Appeal recording facts such as "normal street purity" of a drug do not constitute evidence of those facts in a later proceeding, and cannot be treated as having precedential weight for that purpose.

  • Under s 4(2)(a) of the Evidence Act 1995 (NSW), the Act does not apply to sentencing proceedings unless the sentencing court directs otherwise. Where no such direction is given, the common law of evidence governs, as confirmed in R v Bourchas.

  • The Court of Criminal Appeal confirmed that "common knowledge" under s 144 of the Evidence Act, and by analogy under the common law, does not extend to information that is inherently open to question. Normal street purity of methylamphetamine does not meet that standard, at least without some basis being identified for treating it as uncontroversial.

  • Procedural fairness requires that an offender be given an opportunity to address any factual matter a sentencing judge proposes to raise on the judge's own initiative, particularly where that matter is treated as aggravating. Relying on a self-acquired factual conclusion without notice constitutes a denial of procedural fairness.

  • Where multiple sentencing errors each operated to increase the sentence, and none could be characterised as neutral or mitigating, an appellate court may infer that, absent those errors, a lower sentence would have been imposed, providing a basis for intervention under the Criminal Appeal Act 1912 (NSW) s 6.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 47, 48
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Evidence Act 1995 (NSW), ss 4, 144; Ch 4, Pt 4.2
- Interpretation Act 1987 (NSW), ss 34, 35

Cases:
- R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413
- Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321
- House v King (1956) 55 CLR 499
- Ingham v R [2014] NSWCCA 123
- R v Attallah [2005] NSWCCA 277
- R v Hemsley [2004] NSWCCA 228
- Prculovski v R [2010] NSWCCA 274
- Ma and Pham v R [2007] NSWCCA 240
- Coco v The Queen [1994] HCA 15; 179 CLR 427
- Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1