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Court of Criminal Appeal 24 November 2014

Legault v R

[2014] NSWCCA 271

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE

Citation: Legault v R [2014] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 24 November 2014
Judge(s): Bathurst CJ; Adams J; R A Hulme J

Background

The appellant pleaded guilty to importing a commercial quantity of methamphetamine into Australia, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). He was intercepted at Sydney's Mascot International Airport in October 2012 after customs officers discovered over 2,780 grams of methamphetamine (with a pure weight of 2,033.9 grams) concealed in a false bottom in his suitcase. The commercial quantity threshold for the drug is 750 grams, meaning the amount imported was approximately three times that threshold.

The sentencing judge imposed a head sentence of 9 years and 4 months, with a non-parole period of 6 years, dating from the date of arrest. That sentence reflected a 25 per cent discount for the early guilty plea, with the pre-discount starting point being 12 years and 6 months. The maximum penalty for the offence is life imprisonment.

The appellant sought leave to appeal on the single ground that the sentence was manifestly excessive, relying in part on sentencing statistics and comparisons with other decided cases.

  • Whether the sentence of 9 years and 4 months (non-parole period of 6 years) was manifestly excessive in all the circumstances
  • Whether sentencing statistics and comparable cases could establish, or confirm, that the sentencing judge's discretion miscarried

Decision

All three judges agreed the sentence was not manifestly excessive and that leave to appeal should be granted but the appeal dismissed.

Bathurst CJ, in brief reasons, emphasised that a sentence is manifestly excessive only where it is unreasonable and plainly unjust, citing Hili v R; Jones v The Queen (2010) 242 CLR 520. His Honour also stressed that appellate intervention is not justified merely because a sentence differs materially from sentences in other cases. Sentencing statistics can serve only as a yardstick for examination, not as an independent basis for intervention.

Adams J examined the objective and subjective circumstances in detail. The offence involved careful pre-planning, a substantial quantity of drugs far exceeding the commercial threshold, and was committed for financial gain. On the subjective side, the sentencing judge had accepted a difficult personal history, including a serious assault at age 15 resulting in post-traumatic stress disorder and chronic pain, as well as good prospects for rehabilitation. However, the sentencing judge found no genuine remorse and noted a criminal history that reduced the leniency otherwise available. Taking all those matters together, Adams J was not satisfied the sentencing judge's discretion had miscarried.

R A Hulme J rejected the characterisation of the offending as being at the "lower end of the range," noting the drug quantity, the substantial planning involved, and the financial motive. His Honour accepted that the sentence was above the statistical mean but concluded it was not so severe as to be self-evidently excessive. The appellant's contention failed at the first step of the argument.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence is manifestly excessive only where it is unreasonable and plainly unjust; a material difference from other sentences does not of itself justify appellate intervention.
  • Sentencing statistics can provide a yardstick against which to examine a proposed sentence but cannot on their own establish manifest excess.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence above the statistical mean for a given offence category does not automatically demonstrate that the sentencing judge's discretion miscarried.
  • Where the drug quantity is approximately three times the commercial threshold and the offence involved substantial pre-planning and financial motive, characterising the criminality as falling at the "lower end of the range" will not be readily accepted.
  • Favourable subjective factors, including post-traumatic stress disorder, chronic pain, and good rehabilitation prospects, were weighed by the sentencing court but did not overcome the objective seriousness of the offending or the absence of demonstrated remorse.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth) s 307.1(1)

Cases
- Hili v R; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- R v Basri [2009] NSWDC 398
- R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
- Speer v R [2004] NSWCCA 118