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Court of Criminal Appeal 29 April 2014

R v Cidan

[2014] NSWCCA 66

Drugs
CRIMINAL LAW SENTENCE CROWN APPEAL MANIFEST INADEQUACY DRUG OFFENCES

Citation: R v Cidan [2014] NSWCCA 66
Court: Court of Criminal Appeal, NSW
Date: 29 April 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J (unanimous, reasons by Adamson J)

Background

The respondent was convicted by jury of importing a marketable quantity of opium (approximately 14.8 kg) concealed in Persian tea urns shipped from Tehran, and of possessing a further marketable quantity of opium (approximately 8.3 kg) found in a storage locker he accessed. He was subsequently sentenced separately, following a guilty plea, for dealing with money believed to be proceeds of crime and for deemed supply of a large commercial quantity of methylamphetamine (approximately 2.27 kg), among other related drug offences.

Two different District Court judges imposed sentences on the respondent at separate hearings. Puckeridge A-DCJ sentenced him following the jury trial in October 2013, and Haesler DCJ sentenced him following the guilty plea in January 2014. The sentences were structured to run cumulatively, but with significant concurrency across the overall period.

The Crown appealed both sentences under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that each was manifestly inadequate and that several specific errors infected the sentencing exercises. The respondent did not advance any reason why the Court should exercise its residual discretion to dismiss the appeal.

  • Whether the sentences imposed by Puckeridge A-DCJ and Haesler DCJ were each manifestly inadequate, individually and in combination
  • Whether Puckeridge A-DCJ erred by accumulating the two opium sentences by only one year, producing insufficient overall criminality
  • Whether insufficient weight was given to the respondent's role and the quantities of drugs involved
  • Whether the sentencing judges erred by treating the respondent's depressive condition and opium use as mitigating factors in the absence of evidence of a causal or temporal link to the offending
  • Whether Haesler DCJ gave insufficient regard to the standard non-parole period (SNPP) for the drug supply offences
  • Whether the Court should exercise its residual discretion to decline to intervene even if error were established

Decision

The Court of Criminal Appeal, with Adamson J delivering reasons with which Hoeben CJ at CL and Fullerton J agreed, upheld the Crown appeal and found that both sentences were manifestly inadequate. The degree of concurrency built into the Puckeridge sentence was held to be insufficient given the scale of the offending and the respondent's established role in organising the importation scheme. The Court found that Puckeridge A-DCJ's accumulation of the two opium sentences by only one year failed to reflect the separate and serious criminality involved in each count.

On the question of the respondent's mental health and drug use, the Court found that the sentencing judges had erred in treating these as mitigating factors bearing on moral culpability. Dr Allnutt's report itself acknowledged that, because the respondent denied the offending, no opinion could be given on the nexus between any psychiatric disorder and the criminal conduct. Without evidence of a causal or temporal link between the depressive disorder or opium dependence and the offending, those conditions could not properly reduce the respondent's moral culpability.

The Court also found that Haesler DCJ had not given adequate weight to the SNPP of 15 years applicable to the large commercial quantity methylamphetamine supply offence. The sentence of 7 years imposed for that offence was well below the SNPP, and no sufficiently compelling reasons were identified to justify such a significant departure. Even accounting for the guilty plea discount of 12.5%, the sentence remained inadequate.

The Court declined to exercise the residual discretion to dismiss the appeal. No delay had occurred, the respondent had been promptly notified of both appeals, and no other countervailing consideration was identified.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed by Puckeridge A-DCJ on 8 October 2013 was varied by altering the commencement date for count 2 from 18 July 2012 to 18 July 2014.
  • The sentence imposed by Haesler DCJ on 22 January 2014 was varied by:
  • Increasing the sentence for supplying methylamphetamine from 7 years to 9 years.
  • Altering the commencement date for that sentence from 18 July 2016 to 18 July 2017 and increasing the non-parole period from 3 years to 4 years.
  • The first date on which the respondent will be eligible for release is noted as 18 July 2021.

Key Takeaways

  • A psychiatric or drug-use condition cannot reduce an offender's moral culpability at sentence unless there is evidence of a causal or temporal link between that condition and the specific offending conduct. The respondent's own denial of the offending, accepted by the psychiatrist who prepared the report, precluded any such opinion being formed here.
  • Where an offender is sentenced on multiple serious counts arising from related but distinct criminal acts, accumulation by only a short additional period may be held manifestly inadequate if it fails to reflect the overall weight of the criminality.
  • Significant departure below an applicable standard non-parole period requires clear and compelling justification. Absent such justification, a sentence well below the SNPP will be vulnerable to a successful Crown appeal.
  • The Court of Criminal Appeal confirmed that the residual discretion to decline to intervene on a Crown appeal will not be exercised in a respondent's favour without some affirmative reason, such as delay, parity concerns, rehabilitation, or deterioration in the respondent's health.
  • In assessing the respondent's role and the weight of drug offences, the quantity of drugs and evidence of personal organisation of an importation scheme are significant factors that sentencing courts are required to reflect meaningfully in the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16E, 19AD
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Code 1995 (Cth), ss 307.2, 307.9, 314.4, 400.4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44, 54A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases
- Bugmy v The Queen [2013] HCA 37
- Carroll v The Queen [2009] HCA 13
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- DPP v Karazisis [2010] VSCA 350; 31 VR 634
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Mac v R [2014] NSWCCA 24
- Munda v Western Australia [2013] HCA 38
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Power v R (1974) 131 CLR 623
- R v Engert (1995) 84 A Crim R 67
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v Mulato [2006] NSWCCA 282
- R v Niketic [2002] NSWCCA 425
- Weininger v The Queen [2003] HCA 14; 212 CLR 629
- Wong v The Queen [2001] HCA 64; 207 CLR 584