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Court of Criminal Appeal 3 December 2014

Ninness v R

[2014] NSWCCA 288

DrugsFraud & dishonesty
CRIMINAL LAW SUPPLY PROHIBITED DRUGS KNOWINGLY DEAL WITH PROCEEDS OF CRIME SENTENCE AGGREGATE SENTENCE IMPOSED WHETHER STANDARD NON

Citation: Ninness v R [2014] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 3 December 2014
Judge(s): Hoeben CJ at CL, Hidden J, Davies J (Davies J delivered the principal judgment; Hoeben CJ at CL and Hidden J agreed)

Background

The applicant pleaded guilty to three offences: knowingly dealing with the proceeds of crime (approximately $259,000 in cash), supplying not less than the commercial quantity of methylamphetamine (365.09g), and supplying a prohibited drug (15.62kg of cannabis). The offending was discovered when police executed a search warrant at the applicant's residence and located large amounts of cash, drugs, a loaded pistol, and cutting agent equipment. Additional charges relating to the pistol, steroids, cutting agent and cocaine were dealt with by the sentencing judge under s 166 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and are not the subject of the appeal.

The applicant, born in 1979, had a minimal criminal record. He had previously run a baking business, begun using amphetamines, and became involved in drug supply after selling the business. He was diagnosed with ADHD in his early teens and treated with Dexamphetamine.

On 26 June 2013, Judge Maiden SC imposed an aggregate sentence of nine years' imprisonment with a non-parole period of six years and nine months. The applicant sought leave to appeal on eight grounds, arguing errors in the sentencing process and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding the applicant did not have an ADHD-related mental condition that engaged the special sentencing considerations outlined in Muldrock v The Queen, and in finding the applicant had exaggerated his condition
  • Whether the sentencing judge gave the standard non-parole period (10 years for commercial quantity methylamphetamine supply) determinative significance, contrary to the approach required after Muldrock
  • Whether the sentencing judge failed to properly assess the objective seriousness of the offences
  • Whether the sentencing judge erred by treating the perceived social harm caused by methylamphetamine as relevant to objective seriousness
  • Whether the sentencing judge failed to account for the quantity and purity of the drugs in the statutory context
  • Whether the sentencing judge erred by treating the applicant's conduct during sentencing proceedings as relevant to specific deterrence
  • Whether the sentencing judge failed to take into account the applicant's lack of prior criminal record as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the aggregate sentence and individual sentences were manifestly excessive

Decision

Ground 1 (ADHD): The sentencing judge acknowledged the applicant's ADHD diagnosis but found the claimed severity was not established by the evidence. The judge was entitled to find that the applicant had exaggerated his symptoms and to be unpersuaded that the absence of Dexamphetamine in prison would render his custody materially more onerous. The Court of Criminal Appeal found this conclusion was open on the evidence and declined to disturb it.

Grounds 2 to 6 (sentencing methodology, objective seriousness and specific deterrence): The Court examined the sentencing remarks carefully and was satisfied that the sentencing judge had not given the standard non-parole period determinative significance. Rather, the judge used it as a guidepost, consistent with the approach mandated by Muldrock v The Queen (2011) 244 CLR 120. On objective seriousness, the judge's comments about the harm caused by methylamphetamine were found to fall within permissible considerations of the nature and context of the offending. References to the applicant's conduct during sentencing were also found to be within proper bounds when read in context.

Ground 7 (prior criminal record): The Court found that the sentencing judge had, in substance, treated the applicant's minimal prior record as a mitigating factor, even if he had not cited s 21A(3)(e) expressly. No error was established on this ground.

Ground 8 (manifest excess): The Court considered the aggregate sentence and the indicative individual sentences, noting the seriousness of the commercial quantity methylamphetamine supply (for which the standard non-parole period is 10 years), the loaded pistol found at the premises, the possession of two different types of drugs, and the proceeds of crime offending. The indicative sentences for the cannabis supply and proceeds of crime charges were only lightly accumulated on the principal sentence. The Court found no error in the aggregate sentence and concluded it was not manifestly excessive.

The Court granted an extension of time to appeal, noting the delay was small even though the explanation offered was inadequate, and then dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's finding about the credibility of a claimed mental health condition (here, ADHD and the unavailability of prescribed medication in custody) will not be disturbed on appeal where the conclusion was open on the available evidence.
  • Following Muldrock v The Queen (2011) 244 CLR 120, sentencing courts must treat the standard non-parole period as a legislative guidepost, not a determinative benchmark; in this case, no error was found because the judge's remarks, read as a whole, demonstrated the required approach.
  • A small, inadequately explained delay in filing a notice of appeal will not automatically defeat an application for extension of time, particularly where the period of delay is short.
  • In dismissing the manifest excess ground, the Court treated the combination of a commercial quantity of methylamphetamine, a loaded concealed pistol on the premises, two distinct categories of drugs, and a large sum of proceeds as cumulatively supporting the aggregate sentence imposed.
  • Where a sentencing judge addresses a mitigating factor in substance during remarks on sentence, the absence of an express citation to the relevant statutory provision (here, s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) does not of itself establish appellable error.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(3)(e) and 166
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v The Queen [2014] HCA 37
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Luu v R [2008] NSWCCA 285
- Golossian v R [2013] NSWCCA 311
- Cao v Regina [2013] NSWCCA 321
- Delaney v R; R v Delaney [2013] NSWCCA 150
- R v Muldrock [2012] NSWCCA 108
- Simpson v R [2014] NSWCCA 23
- Jeffrey v R [2012] NSWCCA 36
- Redfern v R [2012] NSWCCA 178
- McBeth v R [2009] NSWCCA 235
- R v Blair [2005] NSWCCA 78
- R v Dang [2005] NSWCCA 430
- R v Cheikh [2004] NSWCCA 448
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Leroy (1984) 13 A Crim R 469
- R v Nemes (Court of Criminal Appeal (NSW), 28 August 1997, unreported)