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Court of Criminal Appeal 24 September 2015

Haule v R

[2015] NSWCCA 253

Drugs
CRIMINAL LAW APPEAL SENTENCING SUBSTITUTED SENTENCE

Citation: Haule v R [2015] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 24 September 2015
Judges: Macfarlan JA, Adams J, Fagan J

Background

The appellant pleaded guilty in the Local Court to three offences: supplying cocaine (74.6g at 65% purity), supplying more than an indictable but less than a commercial quantity of cannabis leaf over a period of approximately nine months, and dealing with $21,400 in proceeds of crime. Three further minor drug possession offences were taken into account on a Form 1 (a procedure under NSW sentencing law that allows related offences to be acknowledged at sentencing without separate penalty).

On 6 June 2014, the District Court sentenced the appellant to a total effective sentence anchored by 5 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months, for the cannabis supply offence. A 25% discount was applied for the early guilty plea.

The appellant sought leave to appeal on the basis that the primary judge sentenced him for the cannabis supply offence by reference to a maximum penalty of 15 years imprisonment. The correct maximum for that offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) was 10 years. The Crown conceded the error.

  • Whether the primary judge applied the wrong maximum term of imprisonment when sentencing for the cannabis supply offence
  • What sentence the Court of Criminal Appeal should substitute for the cannabis supply offence, given the error required the original sentence to be set aside
  • How to assess the quantity of cannabis for sentencing purposes, given the agreed facts involved assumptions about the contents of vacuum bags rather than direct admissions

Decision

The Court unanimously held that the primary judge's use of 15 years as the maximum penalty for the cannabis supply offence was a legal error that invalidated that sentence. Where a lesser sentence is warranted in law, the Court of Criminal Appeal must substitute that sentence. The Crown's concession was accepted without controversy.

On the question of facts, Adams J held that the appellant could not be sentenced on the basis of having possessed for supply or having actually supplied close to 25kg of cannabis. The agreed facts contained a calculation that rested on assumptions, not admissions. An adverse factual finding at sentencing must be established beyond reasonable doubt by evidence or admission, and a calculation based on unproven assumptions is insufficient. The sentencing court therefore proceeded on the basis that 8.7kg of cannabis was in the appellant's possession at arrest, mostly for supply, and that a significant but unquantified further quantity had been supplied over the preceding eight months.

Adams J fixed the appropriate starting point for the cannabis supply offence at 5 years and 6 months. Applying the 25% discount for the early plea, the sentence was reduced to 4 years and 9 months. Special circumstances were found to exist, justifying a departure from the standard statutory ratio between non-parole period and balance of term, to allow for an extended period of supervised release given the appellant's serious drug addiction. A non-parole period of 2 years and 6 months was imposed.

The cocaine and proceeds of crime sentences remained unchanged. The cannabis supply sentence was accumulated by four months on the cocaine sentence, with the proceeds of crime sentence running wholly concurrently.

Orders Made

  • Leave to appeal granted
  • Sentences imposed by the District Court on 6 June 2014 set aside and replaced as follows:
  • Supply of cocaine: fixed term of 2 years imprisonment commencing 28 November 2012, expiring 27 November 2014
  • Supply of cannabis leaf (including Form 1 matters): non-parole period of 2 years and 6 months commencing 28 March 2013, expiring 27 September 2015, with a balance of term of 2 years and 3 months commencing 28 September 2015, expiring 27 December 2017
  • Dealing with proceeds of crime: fixed term of 12 months commencing 28 March 2013
  • First date eligible for parole: 27 September 2015

Key Takeaways

  • A sentencing judge who applies an incorrect statutory maximum penalty produces a sentence that cannot stand; the Court of Criminal Appeal will set it aside and resentence the offender itself, substituting the lesser sentence warranted in law.
  • Adverse factual findings at sentencing must be established beyond reasonable doubt by evidence or direct admission. A calculation derived from assumptions that the offender has not admitted is insufficient, even where it appears in agreed facts.
  • Under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), supply of cannabis leaf in a quantity above the indictable threshold (1kg) but below the commercial quantity (25kg) carries a maximum of 10 years imprisonment, not 15 years.
  • Special circumstances justifying a reduced non-parole period relative to the total sentence can be found where an offender has serious drug addiction and will require structured community supervision and treatment upon release.
  • In dismissing the challenge to the cocaine and proceeds of crime sentences, the Court confirmed those sentences required no adjustment; the resentencing exercise was confined to the offence directly tainted by the maximum penalty error.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(1) and s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- Luu v R [2008] NSWCCA 285