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Court of Criminal Appeal 19 November 2015

Plaisted v R

[2015] NSWCCA 287

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Plaisted v R [2015] NSWCCA 287
Court: Court of Criminal Appeal, NSW
Date: 19 November 2015
Judge(s): Basten JA; Wilson J; RS Hulme AJ

Background

The appellant was sentenced in the District Court on 20 May 2013 for two offences of knowingly participating in the supply of not less than a large commercial quantity of a prohibited drug. Count 1 involved approximately 22 kilograms of methylamphetamine ("ice"); count 2 involved just over one kilogram of heroin. The appellant used his expertise and contacts in interstate truck transport to move the drugs as part of a high-level criminal syndicate.

The sentencing judge (Garling ADCJ) imposed a sentence on count 1 with a starting point of 19 years, reduced by 25 percent for an early guilty plea, yielding 14 years imprisonment. A finding of special circumstances then produced a non-parole period of 9 years with a balance of term of 5 years. The sentence on count 2 was wholly concurrent and subsumed within count 1.

Central to the sentencing exercise was a comparison with a co-offender, AMZ, whose sentence had been upheld by the Court of Criminal Appeal. The sentencing judge accepted that the appellant's overall culpability was well below that of AMZ, whose starting point had been 29 years. The appellant challenged the sentence on two grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the appellant's role in the offending, including whether the judge's language about that role was inconsistent or inaccurate.
  • Whether the sentence was manifestly excessive, having particular regard to the comparison with the co-offender AMZ and the differences in their respective roles and conduct.

Decision

Ground 1: Objective seriousness. The judges divided on this ground. Wilson J would have dismissed it, finding that the sentencing judge's apparently contradictory descriptions of the appellant's role as both "minor" and "substantial" were not in fact inconsistent when read in context. The "minor" characterisation was a comparison with the principal of the syndicate; the "substantial" characterisation reflected the appellant's overall role within the syndicate as a whole. RS Hulme AJ and Basten JA found sufficient substance in the criticism of the judge's language to support a conclusion that the discretion miscarried, particularly in combination with the co-offender comparison.

The co-offender comparison. All three judges engaged with the comparison between the appellant's starting point (19 years) and AMZ's starting point (29 years). AMZ's figure needed to be adjusted downward by approximately five years to account for additional offending involving a further 6 kilograms of methylamphetamine in which the appellant played no part. That adjustment produced an AMZ-equivalent starting point of approximately 24 years. On that basis, the appellant's starting point of 19 years represented about 80 percent of AMZ's culpability, a level the majority found was inadequately distinguishing given the significant differences in their roles. AMZ had acted as personal assistant to the principal and was considerably more involved than the appellant.

Finding of error. Basten JA and RS Hulme AJ held, by majority, that the combination of the language concerns and the inadequate numerical distinction in the co-offender comparison demonstrated that the sentencing discretion had miscarried. Once error was established, the Court was required under the approach confirmed in Kentwell v The Queen to form its own view of the appropriate sentence rather than make only incremental adjustments.

Re-sentencing. RS Hulme AJ, with Basten JA agreeing, assessed the appropriate sentence independently, taking into account the quantity of drugs involved, the limited nature of the appellant's role, the absence of evidence of large personal profits, the appellant's difficult upbringing, and the finding of special circumstances. The result was a non-parole period of 7 years (compared to the original 9 years) with a balance of term of 4 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Garling ADCJ quashed.
  • Appellant sentenced to a non-parole period of 7 years commencing 5 May 2011, together with a balance of term of 4 years commencing 5 May 2018.
  • Date of eligibility for parole recorded as 5 May 2018.

Key Takeaways

  • When comparing sentences between co-offenders, a court must make careful adjustments to account for differences in the scope and nature of each offender's criminal conduct before drawing numerical comparisons; failure to do so adequately can constitute a miscarriage of the sentencing discretion.
  • The Court of Criminal Appeal confirmed the principle in Kentwell v The Queen: once appellate error in the exercise of sentencing discretion is established, the appellate court must form its own independent view of an appropriate sentence rather than simply tinker at the margins of the original.
  • Apparently contradictory language in a sentencing judgment does not automatically establish error; Wilson J's dissent illustrates that such language must be read in the full context of the remarks, including the specific comparisons the sentencing judge was drawing at each point.
  • Under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW), the offence of knowingly participating in supply captures a wide range of conduct, which limits the usefulness of both sentencing statistics and the standard non-parole period (15 years for large commercial quantities) as precise guides in cases involving multiple co-offenders with different levels of culpability.
  • A finding of special circumstances justifying a departure from the standard non-parole-period-to-total-sentence ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can survive the quashing of a sentence and be applied afresh on re-sentencing if the underlying circumstances remain.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44; Pt 4, Div 1A (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- AMZ v R [2013] NSWCCA 6
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Green v R [2011] HCA 49; (2011) 244 CLR 462
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Koh v R [2013] NSWCCA 287