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13
Court of Criminal Appeal 18 August 2014

Cullen v R

[2014] NSWCCA 162

Drugs
CRIMINAL APPEAL LEAVE TO APPEAL AGAINST SENTENCE AGGREGATE SENTENCE INDICATIVE SENTENCE

Citation: Cullen v R [2014] NSWCCA 162
Court: Court of Criminal Appeal, NSW
Date: 18 August 2014
Judges: Macfarlan JA, Adamson J, Bellew J

Background

The applicant pleaded guilty in the District Court to five drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), including supplying large commercial quantities of gamma-Butyrolactone and MDMA, as well as supplying methylamphetamine, cocaine, and ketamine. Police found the drugs during a search of his Surry Hills apartment in July 2012, along with drug ledgers, scales, substantial cash, and a taser in his vehicle. The sentencing judge described him as "plainly a large scale drug dealer."

Blackmore DCJ imposed an aggregate sentence of twelve years with an eight-year non-parole period, commencing 26 February 2013, after allowing a 25% discount for the early guilty plea. Mitigating factors included the applicant's lack of prior criminal history, genuine contrition, good rehabilitation prospects, and a likely diagnosis of manic depression, which the sentencing judge accepted as reducing the weight given to general deterrence to some extent.

The applicant sought leave to appeal on two grounds: that the sentencing judge failed to state a commencement date for each individual sentence, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to state a commencement date for each individual sentence imposed as part of an aggregate sentence
  • Whether the aggregate sentence of twelve years with an eight-year non-parole period was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error. Where a sentencing court imposes an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW), it is not required to state a commencement date for each individual component sentence. The obligation to specify a commencement date attaches to the aggregate sentence itself, and that requirement was satisfied here. The first ground was rejected.

On the manifest excess ground, the Court examined the sentencing judge's remarks carefully, including a reference to a hypothetical pre-discount sentence of sixteen years. Adamson J rejected the applicant's submission that this figure should have been discounted further for contrition, rehabilitation prospects, and mental condition. Her Honour found the remark to be no more than an indicative hypothetical, of the kind that can arise in the course of extempore sentencing remarks, and not a discrete mathematical starting point amenable to a further series of reductions.

The Court noted that the two principal offences each carried a maximum life sentence and a standard non-parole period of fifteen years, providing clear legislative signals of their seriousness. The sentencing judge's findings that the applicant was a large-scale dealer, capable of controlling his manic depression in the future, supported the imposition of a substantial sentence. The Court was not persuaded that manifest excess had been established, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where an aggregate sentence is imposed, the sentencing court is not required to state a commencement date for each individual component sentence; specifying the commencement date of the aggregate sentence is sufficient.
  • Indicative hypothetical figures mentioned in extempore sentencing remarks (such as a notional pre-discount term) do not constitute a discrete sentencing starting point subject to additional sequential reductions for mitigating factors.
  • Manifest excess is a conclusion, not a ground that is made out simply because the sentence is said to be heavy; legislative maximum penalties and standard non-parole periods serve as relevant guideposts for assessing objective seriousness.
  • A diagnosis of manic depression can reduce the weight given to general deterrence in sentencing, but this reduction is limited where the court finds the offender capable of controlling the condition in the future.
  • Supplying large commercial quantities of prohibited drugs across multiple counts, combined with evidence of a sustained dealing operation, supports a lengthy aggregate sentence even where significant mitigating factors are present.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25(2)
- District Court Rules 1973

Cases:
- Achurch v The Queen [2014] HCA 10; 306 ALR 566
- Bailey v Marinoff [1971] HCA 49; 125 CLR 529
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Erceg v The District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- Wong v The Queen [2001] HCA 64; 207 CLR 584