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Court of Criminal Appeal 19 May 2014

TRAN, Brendon v Regina

[2014] NSWCCA 85

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL LEAVE GRANTED APPEAL DISMISSED

Citation: Tran v Regina [2014] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 19 May 2014
Judges: Hall J (primary judgment); RA Hulme J; Davies J

Background

The applicant pleaded guilty in the Local Court to three charges: supplying a commercial quantity of methylamphetamine (977.7 grams), and possessing two unlicensed firearms (a revolver and a sawn-off shotgun). Three further drug supply offences were included on a Form 1 to be taken into account on sentence. The offending arose from police surveillance of an operation to transport drugs from Sydney to Perth, during which the applicant was intercepted at Chippendale carrying crystal methamphetamine concealed on his person alongside a co-offender courier.

In the District Court, the sentencing judge indicated during the hearing that the drug supply offence was in the "middle range" of objective seriousness. Defence counsel accepted that characterisation without further argument. However, in the formal remarks on sentence, the judge found the offence was "well above the middle of the range of seriousness." The applicant was sentenced to an aggregate term of 8 years imprisonment with a non-parole period of 5 years and 9 months.

The applicant sought leave to appeal, arguing procedural unfairness, error in the assessment of objective seriousness, error in treating the guilty plea as late, and manifest excess in the sentence imposed on the supply count.

  • Whether the applicant was denied procedural fairness when the sentencing judge departed from his indicated assessment of objective seriousness without warning the defence
  • Whether the sentencing judge erred in assessing the objective seriousness of the drug supply offence as "well above" the mid-range
  • Whether the sentencing judge erred by treating the guilty plea as late in circumstances where it was not
  • Whether the sentence imposed for the drug supply offence was manifestly excessive
  • Whether, despite any errors established, a different sentence was warranted in law

Decision

Procedural fairness and objective seriousness: The Crown conceded, and the Court accepted, that a denial of procedural fairness occurred. During the sentencing hearing, the judge had indicated the offence was at the mid-range of objective seriousness, defence counsel agreed, and no further submissions were made on the point. The judge then found in his remarks on sentence that the offence was "well above" the mid-range without alerting the defence that he was departing from his earlier indication. This denied the applicant's counsel an opportunity to make additional submissions.

Guilty plea timing: The Court found the sentencing judge also erred in treating the plea as late. The applicant had entered his guilty plea in the Local Court and at the first available opportunity in the District Court, and the characterisation of it as a late plea was not supported by the circumstances.

Manifest excess and the "no other sentence" question: Despite finding two errors, the Court concluded these did not warrant intervention. Even accepting the lower assessment that the drug supply offence was at the mid-range of seriousness, the overall sentencing exercise had to account for three serious Form 1 drug supply matters, the possession of two dangerous concealable firearms, and the organised interstate character of the trafficking. RA Hulme J noted that the sentencing judge's aggregate starting point of "at least 14 years" could not be criticised, and that the conceded error on the plea discount was counterbalanced by an overly generous reduction for assistance that was valuable but not "exceptional." No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge who indicates a view of objective seriousness during a hearing and then departs from it in the formal remarks on sentence without warning commits a denial of procedural fairness, because the defence is deprived of the opportunity to make further submissions on the point.
  • Established sentencing error does not automatically result in a different sentence: the Court of Criminal Appeal will still dismiss an appeal if no other sentence is warranted in law, applying the approach in cases such as R v Gallagher and R v Simpson.
  • Where multiple errors pull in different directions, a court may treat their effects as counterbalancing. Here, an unduly small discount for the guilty plea was offset by an excessively generous discount for assistance.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge is required to indicate what the individual sentences would have been, not to impose separate sentences for each count as if no aggregate sentence had been imposed.
  • Possession of unlicensed firearms by a drug dealer, together with the existence of Form 1 offences including a commercial quantity supply, can significantly elevate the severity of the overall sentencing exercise even where the primary count is treated as falling only at the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(1), 53A(2)

Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 [2002] NSWCCA 518
- Boney v R [2008] NSWCCA 165
- Mulato v R [2006] NSWCCA 282
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Bonett [2009] NSWCCA 135
- R v Dib [2003] NSWCCA 117
- R v Gallagher (1991) 23 NSWLR 220
- R v NP [2003] NSWCCA 195
- R v Simpson [2001] NSWCCA 534
- R v Sukkar [2006] NSWCCA 92
- Wong v R [2001] HCA 64; (2001) 207 CLR 584