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Court of Criminal Appeal 1 October 2014

Lander v R

[2014] NSWCCA 198

Drugs
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY AT EARLY POINT IN TIME WHETHER SENTENCES MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Lander v R [2014] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 1 October 2014
Judge(s): Hoeben CJ at CL; Beech-Jones J; Hamill J

Background

The applicant was sentenced in the District Court in November 2013 on three counts of supplying MDMA and two counts of supplying cannabis, with related possession charges. The offending arose from a police investigation into drug supply in the Southern Highlands, during which telephone intercepts recorded the applicant arranging to purchase 100 MDMA tablets from a primary supplier and then directing a third party to collect 10 of those tablets from his bedroom.

The sentencing judge imposed an effective total sentence of imprisonment with a non-parole period of nine months and a balance of term of 18 months. The applicant gave evidence at the sentencing proceedings but the judge rejected his account that he had personally consumed all 100 tablets, finding it implausible in the circumstances.

The applicant sought leave to appeal the sentence on three grounds, arguing the sentencing judge failed to apply a discount for an early guilty plea, wrongly characterised him as a "conduit" between the primary supplier and a wider community, and imposed sentences that were manifestly excessive.

  • Whether the sentencing judge failed to apply a discount for the applicant's early guilty plea, and whether that omission constituted a legal error.
  • Whether the finding that the applicant acted as a conduit between the primary supplier and the wider community was open on the evidence.
  • Whether the sentences imposed were manifestly excessive.

Decision

Early plea discount: The Court acknowledged that the sentencing judge did not expressly mention a discount for the early guilty plea, noting this was an error of form. However, examining the remarks on sentence as a whole, the Court was satisfied the judge had in fact taken the plea into account. The absence of an explicit reference to the discount did not mean the discount was omitted in substance.

Conduit finding: The Court found this characterisation was open on the evidence. The telephone intercepts established that the applicant was positioned between the primary supplier and other individuals acquiring drugs. The finding was consistent with the facts and did not require proof to a higher standard than was applied.

Manifest excess: The Court rejected this ground. It noted that the applicant received the benefit of wholly concurrent sentences for the cannabis offences, meaning those offences attracted no additional penalty in practice. The Court emphasised that sentencing consistency requires consistent application of principles, not consistent statistical outcomes. Beech-Jones J added that, given the applicant's relative youth and subjective circumstances, a non-custodial sentence would have been open to the sentencing judge. However, the fact that such a sentence was not imposed did not render the sentence actually imposed manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Bail revoked; applicant returned to custody to complete sentence imposed by Freeman ADCJ.
  • Applicant to be released to parole on 31 December 2014, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • A sentencing judge's failure to expressly mention a guilty plea discount does not automatically constitute legal error; the Court of Criminal Appeal will examine the sentence as a whole to determine whether the discount was in fact applied.
  • Where an applicant gave false evidence at the sentencing hearing, the sentencing court was entitled to treat this as undermining credit and prospects of rehabilitation, without it constituting impermissible punishment for lying.
  • Characterising an offender as a "conduit" between a primary supplier and end users is a factual finding that must be open on the evidence; here, telephone intercept evidence was sufficient to support the conclusion.
  • In dismissing the ground of manifest excess, the Court of Criminal Appeal reaffirmed that sentencing statistics are of limited utility and that the relevant requirement is consistency in the application of sentencing principles, not uniformity of outcomes.
  • A non-custodial sentence being theoretically available on the facts does not, without more, establish that the custodial sentence actually imposed was manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1); s 10(1)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)

Cases:
- Abdul v R [2013] NSWCCA 247
- Markarian v R [2005] HCA 25; 228 CLR 357
- Peiris v R [2014] NSWCCA 58
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Regina v Lawrence [2005] NSWCCA 91
- Regina v Schumacher [2005] NSWCCA 355