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24
Court of Criminal Appeal 17 August 2015

Jadron v R

[2015] NSWCCA 217

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ONGOING SUPPLY PROHIBITED DRUGS WHETHER DE SIMONI PRINCIPLE APPLICABLE APPEAL AGAINST SENTENCE PRINCIPLE OF TOTALITY

Citation: Jadron v R [2015] NSWCCA 217
Court: Court of Criminal Appeal, NSW
Date: 17 August 2015
Judges: Leeming JA, Hamill J, Fagan J (judgment delivered by Fagan J)

Background

The appellant was sentenced in the District Court at Parramatta following pleas of guilty to three offences committed between March and August 2012: ongoing supply of methylamphetamine (157.9g), supply of cannabis (90.5g), and dealing with proceeds of crime ($5,580). The sentencing judge imposed terms totalling an effective sentence of 4 years and 1 month, with an effective non-parole period of 2 years and 6 months, with the sentences partly accumulated.

The drug operation was substantial. Police evidence from telephone intercepts and surveillance showed that the appellant, together with an associate, conducted more than 1,000 drug supply transactions, supplied methamphetamine on an almost daily basis, and received approximately $78,950 in proceeds.

The appellant sought leave to appeal against sentence on two grounds: that the sentencing judge misapplied the totality principle by accumulating all three sentences, and that she breached the rule in R v De Simoni when sentencing on the methylamphetamine count.

  • Whether the sentencing judge misapplied the principle of totality by making the sentences for the two supply counts cumulative on the sentence for dealing with proceeds of crime, resulting in a disproportionately high effective total sentence.
  • Whether the sentencing judge breached the De Simoni principle by taking into account, as an aggravating factor on the methylamphetamine supply count, conduct that would have constituted a more serious offence than the one charged.

Decision

Ground 1: Totality. The Crown conceded this ground at the outset of the hearing. The sentencing judge had made all three sentences cumulative, with the proceeds of crime sentence running first, followed 3 months later by the cannabis sentence, and then 6 months after that by the methylamphetamine sentence. The Court of Criminal Appeal accepted that commencing the proceeds of crime sentence separately from the two supply sentences was an error going to totality, because the proceeds of crime offence arose directly from the same drug-supply enterprise and the accumulation was not warranted.

The Court's remedy was limited. It declined to alter any individual sentence length, noting the Crown had not argued any individual sentence was manifestly inadequate. Instead, it corrected the commencement dates by removing the 3-month gap between the commencement of the proceeds of crime sentence and the two supply sentences, while preserving the 6-month gap between the cannabis and methamphetamine counts. This reduced the total effective sentence to 3 years and 10 months, and the effective non-parole period to 2 years and 3 months.

Ground 2: De Simoni principle. This ground was not conceded. The De Simoni principle provides that a sentencing court must not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence than the one charged. The appellant argued the sentencing judge had impermissibly treated the scale of the operation as involving commercial-quantity supply, which carries a higher maximum penalty under the Drug Misuse and Trafficking Act 1985 (NSW). The Court rejected this argument. The large number of individual supply transactions was a particular of how the charged offence was committed, not a separate, more serious offence. The facts relating to scale directly informed the gravity of the offence charged, rather than elevating it into a different category of offence. No breach of De Simoni was established.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • The sentence for Count 3 (supply cannabis) amended so that the non-parole period of 12 months commences 22 May 2013 and expires 21 May 2014, with the balance term commencing 22 May 2014 and expiring 21 March 2015.
  • The sentence for Count 1 (supply methylamphetamine) amended so that the non-parole period of 1 year and 9 months commences 22 November 2013 and expires 21 August 2015, with the balance term commencing 22 August 2015 and expiring 21 March 2017.
  • The appellant eligible for release on parole upon expiration of the non-parole period fixed for Count 1.

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from aggravating a sentence on the basis of facts that would constitute a more serious offence than the one charged. However, facts that are particulars of how the charged offence was committed, even if indicative of large-scale activity, do not engage this prohibition.
  • A distinction exists between a circumstance of aggravation going to a different, higher offence and a particular that simply describes the manner or extent of the offence actually charged. The Court of Criminal Appeal confirmed that the volume and frequency of individual supply transactions was a particular of the supply offence rather than a separate, more serious charge.
  • Under the totality principle, where multiple offences form part of a single criminal enterprise, the cumulation of sentences must not produce an aggregate term disproportionate to the overall criminality. Automatically accumulating every sentence without regard to the interrelationship of the offences can constitute error.
  • In correcting a totality error, the Court of Criminal Appeal confined its intervention to adjusting commencement dates rather than reducing individual sentence lengths, consistent with the principle that the Crown had not challenged the adequacy of any individual term.
  • Agreed facts tendered at a sentence hearing may include contextual material, such as related drug seizures not the subject of charges, where that material relevantly illuminates the scope and nature of the charged conduct.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(2)

Cases
- R v De Simoni (1981) 147 CLR 383
- Savvas v The Queen (1995) 183 CLR 1
- Hamzy v R (1994) 74 A Crim R 341
- Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463
- Thorn v R [2009] NSWCCA 294; 198 A Crim R 135
- R v Haidar [2004] NSWCCA 350
- R v Locchi (1991) 22 NSWLR 309
- R v F (1996) 90 A Crim R 356
- Director of Public Prosecutions v Merriman [1973] AC 584
- R v Kane (1975) VR 658
- R v Bright [1916] 2 KB 441
- R v Toomey [1964] Crim LR 419