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Court of Criminal Appeal 27 November 2015

Lago v R

[2015] NSWCCA 296

Drugs
CRIMINAL LAW APPEALS SENTENCING OFFENDER’S SENTENCES

Citation: Lago v R [2015] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 27 November 2015
Judge(s): Gleeson JA (with whom Button J and Fagan J agreed)

Background

The applicant was convicted after an eight-day trial in the District Court at Parramatta of supplying 55.6 grams of methylamphetamine (ice) to a co-offender on 10 April 2013. The co-offender was an interstate truck driver who concealed the drugs in his B-double truck before police located them shortly after the handover. Telephone intercepts showed the applicant had arranged and was paid for the supply in advance.

The sentencing judge imposed 4 years' imprisonment with a non-parole period of 2 years and 6 months. Evidence was also admitted at trial, as tendency evidence, of an earlier drug supply by the applicant to the same co-offender on 30 January 2013. That earlier transaction was not itself the subject of a charge.

The co-offender pleaded guilty in the District Court at Lismore and received sentences that were substantially concurrent, including 3 years and 9 months (with a non-parole period of 2 years and 9 months) for his role in the 10 April 2013 supply, along with separate sentences for 30 other supply occasions and further offences. The applicant sought leave to appeal his sentence on three grounds.

  • Whether the sentencing judge treated the uncharged January 2013 drug supply as an aggravating factor, contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383
  • Whether the sentencing judge took into account an irrelevant consideration by inferring the applicant held a higher role in the drug supply network than was established by the evidence
  • Whether the applicant's sentence was rendered unfair by an unjustifiable disparity with the co-offender's sentence

Decision

Ground 1 and 2: Use of uncharged conduct

Gleeson JA found that the sentencing judge had not treated the earlier January 2013 supply as an aggravating feature in a manner that contravened De Simoni. The judge's use of that conduct was confined to two permissible purposes: establishing that the April 2013 offence was not an isolated incident, and assessing the applicant's level of involvement in the drug supply network. Critically, the judge expressly accepted the applicant's submission that the earlier supply did not reflect a greater level of network involvement than was established by the charged offence alone. No error was identified in this aspect of the sentencing.

Ground 3: Disparity with the co-offender's sentence

The Court considered the relevant differences between the applicant and the co-offender. The applicant faced a single charge and had a stronger subjective case, including diagnoses of PTSD and chronic pain disorder, a dysfunctional background, and a finding of special circumstances (warranting a longer parole period). The co-offender, by contrast, pleaded guilty to the subject supply plus 30 further supply occasions and additional offences, and was on a s 9 bond for drug offences at the time of his offending. The co-offender's overall conduct was therefore significantly more serious.

Gleeson JA found that the effective differential of approximately 12 months in the applicant's favour was consistent with those distinctions, and that the sentencing judge had properly recognised a higher notional starting point for the co-offender's sentence. The disparity was not unfair, and the applicant had not established an objectively justifiable sense of grievance. All three grounds failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may use evidence of uncharged criminal conduct to find that an offence was not isolated and to assess the offender's level of network involvement, provided it does not treat that conduct as an aggravating circumstance attracting a more serious charge under the De Simoni principle.
  • Where the sentencing court expressly limits its use of uncharged conduct to permissible purposes, and accepts defence submissions confining its significance, no error arises merely because that conduct was referenced in the remarks on sentence.
  • Disparity between a principal offender's sentence and a co-offender's sentence does not establish error where the co-offender's conduct was objectively more serious, including commission of offences while on conditional liberty and conviction for a substantially greater number of offences.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of special circumstances (which lengthens the parole period relative to the head sentence) can explain a shorter non-parole period for one co-offender without rendering that sentence disproportionately lenient or creating an unjust disparity.
  • No error of the kind identified in House v The King (1936) 55 CLR 499 was established: the sentencing judge had not mistaken the facts, and the result was neither plainly unreasonable nor unjust on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 32
- Criminal Procedure Act 1986 (NSW) Ch 3, Pt 3
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 32(1), Sch 1

Cases
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- House v The King [1936] HCA 40; 55 CLR 499
- Green v The Queen [2011] HCA 49; 244 CLR 462
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- SBF v R [2009] NSWCCA 231; 198 A Crim R 219
- Velez v R [2015] NSWCCA 177
- Rae v R [2011] NSWCCA 211
- Sills v R [2011] NSWCCA 271
- Peiris v R [2014] NSWCCA 58
- Lewins v R [2007] NSWCCA 189; 175 A Crim R 40
- England v R; Phanith v R [2009] NSWCCA 274
- R v Wei Pan [2005] NSWCCA 114