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Court of Criminal Appeal 17 June 2015

Salafia v R

[2015] NSWCCA 141

Drugs
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL JOINT CRIMINAL ENTERPRISE SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Salafia v R [2015] NSWCCA 141
Court: Court of Criminal Appeal, New South Wales
Date: 17 June 2015
Judge(s): Hoeben CJ at CL, Hall J, Wilson J (judgment delivered by Wilson J)

Background

The applicant was sentenced in the Sydney District Court in February 2014 after pleading guilty to one count of manufacturing a prohibited drug, namely methylamphetamine, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. The drug manufactured amounted to 31.6 grams, produced at a rural property at Putty, near Singleton, as part of a joint criminal enterprise involving seven co-offenders. The applicant's role centred on sourcing pseudoephedrine, the precursor chemical used in the manufacturing process, and facilitating the broader enterprise over a period of months in 2011.

The sentencing judge imposed a term of three years and six months imprisonment, with a non-parole period of two years and two months, dating from the day of sentencing. A 10% discount was applied to reflect the utilitarian value of the late guilty plea. The applicant had spent 19 days in pre-sentence custody and was otherwise on bail.

The applicant sought leave to appeal, contending the sentencing judge had made errors that warranted intervention by the Court of Criminal Appeal.

  • Whether the sentencing judge erred in her treatment of the 19 days of pre-sentence custody
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending, including the applicant's role in the joint criminal enterprise and the significance of the amount of drug that could theoretically be yielded from precursors
  • Whether the sentence was manifestly excessive

Decision

On the first ground, the Court found that the sentencing judge did in fact take the pre-sentence custody into account, and that adequate reasons were given for the approach adopted. No error was established.

On the second ground, concerning objective seriousness, the Court examined the applicant's role in the enterprise and found that the sentencing judge's characterisation was well-founded. The applicant had procured pseudoephedrine, coordinated with co-offenders, applied pressure when the manufacturing process was delayed, and was plainly a senior participant motivated by financial gain. The Court rejected the suggestion that undue reliance had been placed on expert opinion about theoretical drug yields from precursors, finding that the sentencing judge had approached the quantity question appropriately.

On the third ground, the Court applied the established test from Dinsdale v R, requiring the applicant to demonstrate that the sentence was unreasonable or plainly unjust. It noted that sentencing judges hold a broad discretion, that there is no single "correct" sentence, and that the analysis required reference to the maximum penalty of 15 years imprisonment. The Court found that the sentencing judge had correctly weighed the applicant's subjective circumstances, including his prospects of rehabilitation, minor criminal record, remorse, employment history and family circumstances. A finding of special circumstances had already extended the applicant's parole period in his favour. No error in principle or departure from applicable sentencing principles was identified.

Leave to appeal was refused on all three grounds.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that pre-sentence custody need not be dealt with in any particular formulaic way, provided the sentencing judge addresses it and gives adequate reasons.
  • A senior role in a joint criminal enterprise, including sourcing precursor chemicals and applying pressure to co-offenders to expedite manufacture, justifies a finding of significant objective seriousness even where the offender ultimately suffered financial loss from the venture.
  • Under the manifest excess test drawn from Dinsdale v R and Markarian v The Queen, an applicant must show the sentence was unreasonable or plainly unjust; a broad sentencing discretion and the absence of any single "correct" sentence make this a high threshold to meet.
  • Favourable subjective features, including remorse, good rehabilitation prospects and positive personal circumstances, do not automatically reduce a sentence if they have already been factored in by the sentencing judge, including through a special circumstances finding extending the non-parole period.
  • No error was established in the sentencing court's use of expert evidence concerning the theoretical yield of methylamphetamine from precursor chemicals, where that evidence was applied as one factor in the overall assessment rather than as a determinative measure of the quantity of drug manufactured.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Ali v R [2010] NSWCCA 35
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- English [2000] NSWCCA 245
- House v The King (1936) 55 CLR 499
- Kaminic v R [2014] NSWCCA 116
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Engert (1995) 84 A Crim R 67
- R v Starmer [2008] NSWCCA 27
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Wiggins v R [2010] NSWCCA 30