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Court of Criminal Appeal 14 November 2014

Briouzguine v R

[2014] NSWCCA 264

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE

Citation: Briouzguine v R [2014] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 14 November 2014
Judges: Gleeson JA (with Schmidt J and Bellew J agreeing)

Background

The appellant was 22 years old and studying engineering when, over a four-month period in late 2010, he engaged in a substantial drug supply operation involving multiple prohibited drugs. He pleaded guilty to four counts of drug supply under the Drug Misuse and Trafficking Act 1985 (NSW), covering quantities of MDA and MDMA ranging from indictable to large commercial quantities. Several additional offences were taken into account on Form 1, including supplies of methylamphetamine and other prohibited drugs.

In the District Court at Parramatta, the sentencing judge applied an 18% discount for the pleas of guilty and imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The result was a non-parole period of 5 years, with a balance of term of 4 years, expiring in August 2022. Indicative sentences for the individual counts ranged from a fixed term of 2 years to 7 years.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the aggregate sentence was manifestly excessive in light of the objective seriousness of the offending and his personal (subjective) circumstances.

  • Whether the aggregate sentence imposed was manifestly excessive, having regard to both the objective seriousness of the offending and the appellant's subjective circumstances
  • Whether any error in the indicative sentences for individual counts infected the aggregate sentence
  • Whether the sentencing judge's findings of fact were inconsistent with the sentence ultimately imposed

Decision

Gleeson JA, with Schmidt J and Bellew J agreeing, held that leave to appeal should be granted but the appeal dismissed. The Court found no error in the exercise of the sentencing discretion that would warrant intervention under the well-established principles in House v The King (1936) 55 CLR 499.

On the question of objective seriousness, the sentencing judge had found the offending to be at the lower end of the range for offences of this type. The Court of Criminal Appeal accepted this characterisation, noting the drugs were of relatively low purity and that the appellant's role, while serious, did not place him at the apex of the supply chain. However, the sheer volume of drugs involved across multiple counts and the sustained period of offending meant the overall criminality was significant.

On subjective circumstances, the Court acknowledged a number of compelling mitigating factors, including the appellant's youth, absence of prior convictions, genuine remorse, strong prospects of rehabilitation, and supportive family circumstances. These factors had been weighed by the sentencing judge and were reflected in the sentence imposed, including the generous ratio of non-parole period to total sentence.

The appellant's reliance on a table of comparable cases to establish a range was rejected. The Court observed that the variety of facts and degrees of culpability across drug supply cases makes it difficult to extract a reliable sentencing range from selected decisions. A comparison with Naim v R [2006] NSWCCA 289, which involved similar objective seriousness findings, actually demonstrated that the appellant received a more favourable non-parole period than the offender in that case, despite the present offending being greater in scale.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An indicative sentence under an aggregate sentencing regime is not itself amenable to appeal, but an erroneous approach to an indicative sentence may reveal error in the aggregate sentence, and the materiality of any such error must be demonstrated before the Court of Criminal Appeal will intervene.
  • Where a sentencing judge finds drug offending to be at the lower end of the objective seriousness range, that characterisation must still be assessed against the totality of the offending, including the number of counts, the quantities involved, and the duration of the criminal conduct.
  • Compelling subjective circumstances, including youth, absence of prior convictions, remorse, and rehabilitation prospects, are relevant mitigating factors but do not automatically reduce a sentence to the level sought by an appellant if the overall criminality warrants a higher term.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that using a selected table of comparable cases to establish a sentencing range is of limited utility, given the inevitable variation in facts and offender circumstances across drug supply decisions.
  • The standard for appellate intervention remains that the sentence must fall outside the range of a proper exercise of sentencing discretion; it is not sufficient that another sentence might have been equally open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 192G(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 44, 53A
- Criminal Appeal Act 1912 (NSW) s 6
- Drug Misuse and Trafficking Act 1985 (NSW) s 25 and Schedule 1

Cases:
- House v The King (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- Hili v R [2010] HCA 45; 242 CLR 520
- R v Brown [2012] NSWCCA 199
- PD v R [2012] NSWCCA 242
- Naim v R [2006] NSWCCA 289
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146