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Court of Criminal Appeal 23 October 2014

Dries v R

[2014] NSWCCA 228

Drugs
CRIMINAL LAW SENTENCING APPEAL TWO OFFENCES NO ERROR DISCLOSED PAROLE PERIOD

Citation: Dries v R [2014] NSWCCA 228
Court: Court of Criminal Appeal, NSW
Date: 23 October 2014
Judges: Hoeben CJ at CL, Rothman J, RA Hulme J

Background

The applicant pleaded guilty in the District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985, involving 122 grams of cannabis leaf, 477.9 grams of methylamphetamine, and 192.3 grams of ecstasy. An aggregate sentence was imposed comprising a non-parole period of three years commencing 31 July 2012, with a remainder of term of three years and six months.

During the sentencing proceedings, counsel tendered a statement of agreed facts that contained an error. The purity of one bag of ecstasy (63 grams) was recorded as 63 percent, when in fact the analysts' certificates showed that bag's purity had never been tested. It appears the weight of the drug in that bag was mistakenly repeated as the purity figure. No analysts' certificates were placed before the sentencing judge.

The applicant sought leave to appeal, arguing that the sentencing judge had been misled into treating the purity of that smaller ecstasy bag as very high, thereby distorting the assessment of objective seriousness and the resulting sentence.

  • Whether the error in the agreed facts regarding the purity of the smaller ecstasy bag caused the sentencing judge to fall into error.
  • Whether any such error had a material or substantial effect on the sentence imposed, including the aggregate sentence and the non-parole period.
  • Whether, even if error were established, it warranted appellate intervention under section 6(3) of the Criminal Appeal Act 1912, requiring that a less severe sentence be warranted on the true facts.

Decision

The Court of Criminal Appeal found that while an objective error existed in the agreed facts, the sentencing judge's reference to drug purity was brief and passing. The remarks on sentence focused primarily on the absence of indicia of commercial supply, the applicant's personal circumstances, and the conclusion that the offending was below the mid-range of objective seriousness. Purity was not a driving feature of the sentencing analysis.

Rothman J noted that the error in purity affected only the smallest of the four drug bags across the two principal offences. Crucially, even accounting for the correct or unknown purity of that bag, there was no demonstrated difference in the assessment of objective seriousness, nor any shown difference in the indicative or aggregate sentence that would otherwise have been imposed.

The Court also observed that the aggregate sentence and indicative sentences were, if anything, very lenient in light of the quantities involved. Any arguable error bore on only one of the two indicative sentences, and the applicant's own counsel conceded that the error could not have affected the non-parole period, only potentially the remainder of term.

The Court concluded that the applicant had failed to establish that the error had a substantial effect on the sentence, that the sentence was inappropriate on the true facts, or that a less severe sentence was warranted under section 6(3) of the Criminal Appeal Act 1912. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An error in agreed facts tendered at sentence does not automatically warrant appellate intervention; the applicant must demonstrate that the error had a substantial effect on the sentence actually imposed.
  • Where counsel introduces erroneous material into sentencing proceedings, the Court of Criminal Appeal will only interfere if the irregularity affected the result or rendered the sentence inappropriate on the true facts.
  • In dismissing the appeal, the Court confirmed that an error affecting only one indicative sentence within an aggregate sentencing structure may have no demonstrable impact on the overall aggregate sentence or the non-parole period.
  • Applicant concessions made during the appeal hearing can be significant: the concession that the error could not have affected the non-parole period effectively limited the appeal to a residual question about the remainder of term.
  • Under section 6(3) of the Criminal Appeal Act 1912, the threshold for interference requires more than identifying an error; a less severe sentence must be warranted on the corrected facts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 527C(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- House v R [1936] HCA 40; (1936) 55 CLR 499
- R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462