Citation: Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 18 December 2014
Judges: Basten JA; Button J; RS Hulme AJ
Background
Two brothers, referred to here as Joshua and Kurt, were sentenced in the District Court in September 2012 following convictions for serious drug trafficking offences. Joshua was convicted of supplying a commercial quantity of cannabis (95.4 kg), supplying a large commercial quantity of methylamphetamine (6,048.8 g), and dealing with $200,000 in proceeds of crime. Kurt was convicted of supplying cannabis (17.2 kg), supplying a large commercial quantity of methylamphetamine (1,005.5 g), and entering land with intent to intimidate.
The sentencing judge found that both men had been engaged in significant drug trafficking operations, employing a number of other people. Joshua received an effective sentence of 14 years with a non-parole period of 9 years; Kurt received an effective sentence of 10 years and 9 months with a non-parole period of 7 years.
Both men sought leave to appeal their sentences to the Court of Criminal Appeal, raising overlapping grounds relating to procedural fairness, mental health, manifest excess, and sentencing disparity.
Legal Issues
- Whether Joshua was denied procedural fairness because the sentencing judge accumulated sentences without warning the parties, contrary to the Crown's written submissions
- Whether the sentencing judge failed to give adequate weight to Joshua's mental health evidence, including his use of anabolic steroids
- Whether the sentencing judge failed to properly account for Kurt's psychiatric condition and his drug abuse and gambling problems as motivating factors in his offending
- Whether the sentences imposed on each applicant were manifestly excessive
- Whether each applicant had a justifiable sense of grievance arising from disparity between his sentence and those imposed on co-offenders or comparable offenders, including a person referred to as McGann
Decision
Procedural fairness (Joshua). The Court rejected the argument that Joshua was denied procedural fairness by the accumulation of sentences. No error was established that would warrant appellate intervention on this ground.
Mental health and personal circumstances. The Court acknowledged that mental illness not self-induced can operate as a mitigating factor in sentencing, and that drug addiction should not be treated as a straightforwardly self-inflicted condition attracting full moral responsibility. Basten JA noted that the law requires a more nuanced approach than a simple "self-infliction" rule, pointing to the range of views expressed in the leading authority of R v Henry. However, on the evidence before the Court, neither Joshua's anabolic steroid use nor Kurt's drug and gambling problems operated as meaningful mitigating factors, and no error was found in the sentencing judge's treatment of these matters.
Manifest excess. The Court found no error in the overall sentences imposed on either applicant. The quantities of methylamphetamine involved were very large and the offending was serious and sustained. The sentences were not found to be manifestly excessive.
Disparity with McGann. The Court undertook a detailed analysis of the sentencing of McGann, a person the applicants argued was a co-offender who had received a more lenient sentence. RS Hulme AJ found that McGann and the applicants were not co-offenders in the relevant sense. The timing of arrests, the difference in substances involved, and the absence of evidence linking the applicants to McGann's charged offences all pointed against treating them as co-offenders. Accordingly, the comparison was treated as no more significant than a comparison between unrelated offenders charged with similar offences, and no justifiable sense of grievance was established.
Orders Made
For each applicant:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the "self-induced" versus "non-self-induced" distinction in mental health mitigation requires careful and nuanced application; drug addiction does not automatically attract full moral responsibility without further analysis.
- In dismissing the disparity grounds, the Court drew a clear distinction between true co-offenders (who are sentenced together or for the same criminal enterprise) and persons who may have had a supplier-customer relationship but were charged with separate offences at separate proceedings.
- A justifiable sense of grievance arising from disparity requires a proper co-offender relationship; mere similarity in the type of offending or incidental commercial connection does not, of itself, enliven parity principles.
- No error was established in the sentencing judge's assessment of personal and psychiatric circumstances where the evidence in support of mitigation was limited and the objective seriousness of the offending was high.
- Sentences for supplying large commercial quantities of methylamphetamine carry a standard non-parole period of 15 years under the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting the legislature's assessment of the gravity of such offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 114, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 303GN
Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- GAS v The Queen [2004] HCA 22; 271 CLR
- Hili v The Queen [2010] HCA 45; 242 CLR 75
- Parker v DPP (1992) 28 NSWLR 282
- Aoun v R [2011] NSWCCA 284
- Baroudi v R [2007] NSWCCA 48
- Fairbairn v R [2006] NSWCCA 48; 165 A Crim R 434
- Lawson v R [2012] NSWCCA 56
- Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
- R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
- R v Blair [2005] NSWCCA 78; 153 A Crim R 78
- Nair v R [2013] NSWCCA 79