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Court of Criminal Appeal 15 April 2014

Williams v R

[2014] NSWCCA 57

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE HISTORY OF DRUG AND ALCOHOL ABUSE HISTORY OF MENTAL ILLNESS REMORSE GOOD PROSPECTS OF REHABILITATION

Citation: Williams v R [2014] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 15 April 2014
Judge(s): Ward JA, Johnson J, RS Hulme AJ

Background

The appellant pleaded guilty in the District Court to supplying a commercial quantity of cocaine, constituted by six sales totalling approximately 392.7 grams (valued at $107,000) to an undercover police officer at a Sydney hotel between March and July 2010. A search warrant executed after his arrest uncovered additional cocaine, cannabis, other drugs, drug paraphernalia, and $23,000 in cash. The appellant's case was that he had been selling cocaine as a favour for a friend, receiving a small personal supply in return.

The sentencing judge, Wells SC DCJ, imposed six years' imprisonment with a non-parole period of three years and nine months. This reflected a 40% discount for the guilty plea and substantial assistance to authorities, which had exposed the appellant to some personal danger. The offence carries a maximum of 20 years and a standard non-parole period of 10 years.

The appellant, born in 1954, had a history of long-term illicit drug and alcohol use, liver and kidney damage, a prior but limited criminal record, and documented mental health conditions including Post Traumatic Stress Disorder and frontal lobe dysfunction diagnosed after a 2006 car accident. He sought leave to appeal against the sentence on two grounds.

  • Whether the sentencing judge erred in assessing objective seriousness by taking into account that the supply occurred on six separate occasions over a significant period.
  • Whether the sentencing judge erred in treating the appellant's financial capacity as a factor increasing objective seriousness, by reference to motivation for financial gain.
  • Whether the sentencing judge gave insufficient weight to the medical evidence of frontal lobe dysfunction and PTSD in assessing the appellant's moral culpability.

Decision

On the first ground, the Court of Criminal Appeal found no error. RS Hulme AJ held that the sentencing judge's observations about the six separate occasions of supply were unexceptionable. The repeated nature of the offending, the premeditation it reflected, and the appellant's continuing participation over several months were properly relevant to sentencing. The Court distinguished the cited authority of Cicciarello v R, finding that the observations made about multiple transactions in that case did not assist the appellant here.

On the second ground, regarding financial gain, the Court again found no error. The sentencing judge had explicitly noted that the appellant was not purely motivated by financial gain, given his personal drug use. However, the judge properly observed that the appellant had legitimate income and assets available to fund his cocaine use, and was not in the class of destitute or desperate offender who sells drugs merely to finance a habit. The Court held these remarks were factually uncontested and appropriately relevant.

On the medical evidence ground, the Court found the sentencing judge had not misunderstood or improperly discounted the expert material. Two medical experts gave evidence: Dr Hardy, a specialist in addiction medicine who diagnosed frontal lobe damage and PTSD, and Dr Hepner, a neuropsychologist whose testing found no significant impairment to intellectual functioning or high-level executive functions, but did identify some deficit in behavioural adaptation and self-regulation. The sentencing judge accepted that the mental conditions affected the appellant's judgment but only to a limited extent, and was entitled to find that the causal link between those conditions and the offending was limited rather than substantial.

The Court found there were substantial bases in the evidence for the sentencing judge not to accept all of Dr Hardy's evidence in full, and that the judge's reasons disclosed no conflation of issues of intellect and cognitive impairment. Leave to appeal was granted but the appeal was dismissed.

Orders Made

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

Key Takeaways

  • The Court of Criminal Appeal confirmed that the repeated nature of discrete supply transactions over an extended period is a legitimate consideration when assessing the objective seriousness of a drug supply offence, as it is relevant to premeditation and deliberateness.
  • A sentencing court may consider an offender's financial capacity and alternatives when assessing the degree of financial motivation, even where the offender is also a personal user of the drug supplied.
  • Where two medical experts provide evidence of different weight and scope on questions of cognitive impairment, a sentencing court is entitled to accept one report over another, provided its reasoning reflects a proper understanding of the evidence.
  • No error was established in the sentencing judge's conclusion that a limited causal connection between diagnosed frontal lobe dysfunction and the commission of the offending did not substantially reduce the appellant's moral culpability.
  • In dismissing the appeal, the Court reinforced that the existence of mental health or cognitive conditions does not automatically reduce objective seriousness; their significance depends on the strength of the causal link to the particular offending conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Cicciarello v R [2009] NSWCCA 272
- Tadrosse v R [2005] NSWCCA 145