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Court of Criminal Appeal 28 November 2014

Pellegrino v R

[2014] NSWCCA 287

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG AND FIREARM OFFENCES RANGE OBJECTIVE SERIOUSNESS RANGE OBJECTIVE SERIOUSNESS WAS OPEN

Citation: Pellegrino v R [2014] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judge(s): Price J, McCallum J, R A Hulme J (R A Hulme J delivered the leading judgment)

Background

The appellant was sentenced in the District Court at Queanbeyan after pleading guilty to a range of drug and firearm offences. Police executing a search warrant at his home found a clandestine methylamphetamine laboratory, 7.57 grams of methylamphetamine crystals in a refrigerator, a sawn-off Beretta shotgun on a bedside table, a bolt-action rifle, over 360 rounds of ammunition, and various precursor chemicals. The overall sentence imposed was five years' imprisonment with a non-parole period of three years and four months.

The appellant was 22 years old at the time of the offences. He had a history of brain injury from a childhood motor vehicle accident, attention deficit hyperactivity disorder, substance abuse, and non-compliance with prescribed medication. The sentencing judge accepted that his culpability was reduced to some degree and that his prospects of rehabilitation were good, but found that general and specific deterrence remained important considerations given the planning involved.

The appellant sought leave to appeal against sentence on three grounds: that the sentence for the supply offence was manifestly excessive, that the sentence for possessing the prohibited unauthorised firearm (the Beretta) was manifestly excessive, and that the degree of accumulation on that firearm sentence was too great.

  • Whether the sentence imposed for the supply of a prohibited drug (7.57 grams of methylamphetamine) was manifestly excessive given the quantity fell just within the indictable range.
  • Whether the sentence imposed for possession of the unauthorised prohibited firearm (the sawn-off Beretta shotgun) was manifestly excessive given the circumstances of its possession.
  • Whether the degree of accumulation applied to the firearm sentence was excessive.
  • Whether, even if error was established in relation to one count in a multi-offence sentencing exercise, a lesser overall sentence was warranted in law.

Decision

The Court found merit in the first ground only. The supply offence involved 7.57 grams of methylamphetamine at 77.5 per cent purity, a quantity that fell just within the indictable range. R A Hulme J concluded that the offence was not above the mid-range of objective seriousness and that the sentence imposed was manifestly excessive on that count.

The Court rejected the challenge to the firearm sentence. The sawn-off Beretta was found to have been altered (sawn-off) to conceal it, it was found beside ammunition, and it was in the possession of what the Court described as a "criminally minded" offender in the context of drug manufacture and supply activity. The finding that the offence fell in the mid-range of objective seriousness was considered open on those facts, and a sentence of three years with a non-parole period of two years was not unreasonable.

On the accumulation ground, the Court found no error and observed that some partial accumulation on the firearm sentence had been appropriate.

The Court then addressed whether, having identified manifest excess on the supply count, it should resentence to produce a lesser overall term. Drawing on the High Court's decision in Kentwell v The Queen, the Court held that identifying error in one or more counts in a multi-offence sentencing exercise does not necessarily produce a reduced overall sentence. The Court assessed that, while the supply offence warranted a sentence of no more than four years rather than five years, the overall term of five years remained appropriate and nothing less was warranted in all the circumstances.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In a multi-offence sentencing exercise, a finding of manifest excess in relation to one count does not automatically require the imposition of a lesser overall sentence. The Court of Criminal Appeal confirmed that a reduced sentence for one offence may be offset by what would otherwise have been appropriate accumulation on another.

  • Where a prohibited firearm has been physically altered to conceal it, is found alongside ammunition, and is possessed in the context of drug manufacturing and supply, a mid-range assessment of objective seriousness is available to the sentencing court.

  • A drug supply quantity that falls just within the indictable range will not ordinarily support a sentence calibrated above the mid-range of objective seriousness, and a sentence that reflects such a calibration may be manifestly excessive.

  • The appellate approach set out in Kentwell v The Queen applies with equal force where latent error (such as manifest excess) is identified in a multi-count sentence: resentencing does not necessarily follow, and the court retains a discretion to consider the overall sentence structure.

  • Personal mitigating factors, including brain injury, poor impulse control, and good rehabilitation prospects, may reduce culpability and moderate the weight given to deterrence, but their effect is limited where the offending involved sustained planning and organisation over a considerable period.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24A(1)(a), 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 3 of Pt 3
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Carroll v The Queen [2009] HCA 13; 254 CLR 259
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
- Kentwell v The Queen [2014] HCA 37
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Hughes [2005] NSWCCA 235
- Skocic v R [2014] NSWCCA 225
- Tran v R [2013] NSWCCA 322