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Court of Criminal Appeal 9 April 2014

Dang v R

[2014] NSWCCA 47

Drugs
CRIMINAL LAW SENTENCE APPEAL NO DENIAL OF PROCEDURAL FAIRNESS

Citation: Dang v R [2014] NSWCCA 47
Court: Court of Criminal Appeal, NSW
Date: 9 April 2014
Judge(s): Simpson J, Davies J, Adamson J (Adamson J delivered the principal judgment; Simpson and Davies JJ agreed)

Background

The appellant was a heroin user and seller who pleaded guilty in the District Court to two principal offences: supplying a prohibited drug (heroin) on 22 March 2012, and supplying a prohibited drug on an ongoing basis between 7 and 14 March 2012. The ongoing supply charge arose from four separate sales of small quantities of heroin to undercover police officers, totalling approximately 0.35 grams. Two further matters were dealt with on a Form 1 (meaning they were taken into account on sentence without separate convictions being recorded).

Syme DCJ sentenced the appellant to a fixed term of two years and six months for the single supply offence, and to four years and six months imprisonment with a non-parole period of three years for the ongoing supply offence, the sentences to be partially accumulated. A 25% discount was applied to each for the utilitarian value of the guilty plea.

The appellant sought leave to appeal against those sentences, raising five grounds. All three judges of the Court of Criminal Appeal agreed that leave should be granted but the appeal dismissed.

Legal Issues

  • Whether remarks made by the sentencing judge during the hearing created a procedural unfairness by fixing a non-parole period materially in excess of what had been indicated
  • Whether the appellant could rely on grounds of appeal that were inconsistent with concessions made by his counsel before the primary judge
  • Whether the structure of the charges (the ongoing supply count subsuming conduct also captured by a Form 1 item) resulted in legal error in sentencing
  • Whether the sentence was manifestly excessive, having regard to comparable cases

Decision

Ground 1 (procedural fairness: judicial indication): The appellant argued that the sentencing judge's remarks at the close of hearing, referring to "another couple of years on the bottom," amounted to an indication that the non-parole period would be approximately two years, and that imposing a three-year non-parole period without warning was procedurally unfair. The Court found the remark did not constitute a precise or binding indication of the non-parole period to be imposed. Drawing on the High Court's approach in Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam, the Court held that no operative expectation of a specific non-parole period had been generated, and consequently no procedural unfairness arose.

Ground 2 (concession-inconsistent ground): The appellant sought to argue that no accumulation of sentences should have been ordered, contrary to a concession made by his counsel at the hearing that some accumulation was appropriate. The Court declined to grant leave on this ground. Permitting a party to resile from a considered forensic concession made before the primary judge would undermine the integrity of the sentencing process.

Ground 3 (charge structure and double-counting): The appellant contended that because the Form 1 supply offence on 14 March 2012 involved conduct that overlapped with the period of the ongoing supply charge, there was a risk of double punishment. The Court rejected this ground. The framing of charges falls within prosecutorial discretion, and the sentencing judge was required to, and did, sentence on the basis of the agreed facts. No error was identified in how her Honour approached the two sets of conduct.

Ground 4 and Ground 5 (manifest excess): The Court examined comparable sentencing decisions, including Tran v R and a co-accused sentenced by a different judge, while noting the caution required when drawing direct comparisons between sentences. The Court confirmed that such cases can be no more than a guide, given the number of individualised factors bearing on sentence. Taking into account the appellant's substantial criminal history, the breach of a good behaviour bond, the organised (if small-scale) nature of the supply enterprise, and the limited mitigating circumstances, the Court was not satisfied that the sentences fell outside the range open to the sentencing judge. No error was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A judge's informal remark during sentencing proceedings about the likely custodial period does not automatically constitute a binding indication; no denial of procedural fairness arises unless the remark generates an operative expectation upon which a party actually relies to their detriment.
  • The Court of Criminal Appeal will ordinarily refuse leave to run a ground of appeal that directly contradicts a considered forensic concession made by counsel in the court below.
  • Prosecutorial discretion in framing charges is not, of itself, a source of sentencing error; the sentencing court's obligation is to sentence on the agreed facts as presented.
  • Comparative sentencing decisions are a guide only. The multitude of objective and subjective factors relevant under s 21A of the Crimes (Sentencing Procedure) Act 1999 makes it difficult to identify truly comparable cases, and direct comparisons must be approached with care.
  • In dismissing the appeal, the Court affirmed that a sentence for ongoing heroin supply at a moderately organised, small-scale retail level, committed while on a good behaviour bond and against a background of a lengthy criminal record, sat within the available sentencing range even where the quantities involved were modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 21A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 25A

Cases
- Button v R [2010] NSWCCA 264
- Carroll v The Queen [2009] HCA 13
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520
- Koklas v R [2003] NSWCCA 302
- Mulato v R [2006] NSWCCA 282
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1
- Tran v R [2007] NSWCCA 140
- Weir v R [2011] NSWCCA 123
- Zreika v R [2012] NSWCCA 44