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Court of Criminal Appeal 10 November 2014

Sant v R

[2014] NSWCCA 261

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE CHARGE SUPPLY ACTIVITY OFFENDERS

Citation: Sant v R [2014] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 10 November 2014
Judge(s): Hoeben CJ at CL, R A Hulme J, Adamson J

Background

The applicant was sentenced in the District Court by Chief Judge Blanch on 9 December 2011 for supplying not less than the commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum of 20 years' imprisonment and a standard non-parole period of 10 years. The applicant received a sentence of 9 years with a non-parole period of 6 years, commencing 8 June 2010.

The charge covered the period 23 March to 8 June 2010. During that time, the applicant supplied methylamphetamine (commonly known as "ice") in Sydney to a co-offender who transported it to the Dubbo and Wellington areas for on-supply. Nine specific transactions were identified, involving more than 500 grams supplied to an undercover police officer for a total of $210,500.

The applicant sought leave to appeal on three grounds: that the sentencing judge erroneously took into account drug activity outside the charged period; that the judge misapplied parity principles when comparing the applicant's sentence to those of co-offenders; and that the judge gave inadequate weight to the applicant's ill health and hardship in custody.

  • Whether the sentencing judge sentenced the applicant for a longer period of offending than was properly charged on the indictment
  • Whether the sentences imposed on co-offenders gave rise to a legitimate parity grievance under principles including Lowe v The Queen and Green v The Queen; Quinn v The Queen
  • Whether inadequate weight was given to the applicant's ill health and the difficulties he experienced in custody

Decision

Ground 1 and Ground 2: Factual Basis and Parity

The applicant argued that the sentencing judge, by summarising drug activity predating the charge, failed to keep sight of the charged period and effectively sentenced him for a longer course of offending. The Court rejected this inference. The statement of agreed facts itself contained references to pre-charge activity, and a sentencing judge is entitled to consider surrounding context without thereby treating uncharged conduct as a basis for the sentence. No explicit finding that the judge sentenced outside the charge was established.

On parity, the Court found no legitimate basis for grievance. The co-offenders, including the primary distributor, were participants in the same operation but occupied different roles and had significantly different personal circumstances, including no prior criminal history and accepted claims of remorse. The applicant, as the Sydney-based supplier higher in the chain, was properly assessed as more culpable. The sentencing judge expressly addressed the need to give the applicant a heavier penalty than the co-offenders, and the Court found no error in that comparative exercise.

Ground 3: Ill Health and Hardship in Custody

The sentencing judge accepted the medical evidence as to the applicant's health condition, acknowledged that custodial treatment would be inferior to community-based care, and stated on the record that the sentence would be reduced on that account. The Court of Criminal Appeal confirmed that the extent of any such reduction was primarily within the sentencing judge's discretion. Citing R v Baker [2000] NSWCCA 85, the Court reiterated that appellate courts are slow to intervene on grounds that insufficient weight was given to a particular factor in a sentencing exercise. The applicant did not contend the sentence was manifestly excessive, and in that context the Court declined to find that the health matters had been given inadequate weight.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's reference to contextual facts outside the charged period does not, without more, demonstrate that the judge sentenced the offender for uncharged conduct.
  • A parity grievance requires a co-offender to be in a materially comparable position; where differences in role, culpability, and personal circumstances are substantial, no legitimate sense of grievance arises from a heavier sentence.
  • Under the principles affirmed in R v Baker, appellate courts will rarely interfere where the complaint is that insufficient weight was given to a discrete sentencing factor, particularly where manifest excess is not also alleged.
  • The Court confirmed that acknowledgment on the record by the sentencing judge that a sentence has been reduced for ill health and custodial hardship is material to whether an appellate court will intervene on a "weight" complaint.
  • Where an applicant does not assert manifest excess, a freestanding claim that a mitigating factor deserved greater weight faces a high threshold: the question raised by Button J in Hanania v R [2012] NSWCCA 220, as to whether such a complaint is properly a ground of appeal at all rather than a particular of manifest excess, was noted but left unresolved.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hanania v R [2012] NSWCCA 220
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Baker [2000] NSWCCA 85