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Court of Criminal Appeal 4 December 2015

Greer v R

[2015] NSWCCA 312

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ACCUMULATION EXCESSIVE

Citation: Greer v R [2015] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 4 December 2015
Judge(s): Ward JA; R A Hulme J (principal judgment); Fagan J

Background

The appellant was convicted after a jury trial of two counts of ongoing supply of prohibited drugs under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW). Both offences occurred during the same period in August 2010 at the same location: one count related to heroin (supplied on 23 occasions to three people, including an undercover police officer), and the other to methylamphetamine (supplied on nine occasions to a single customer).

At sentencing, the primary judge imposed 7 years imprisonment for each offence. The sentences were partially accumulated, with the methylamphetamine sentence commencing three years into the heroin sentence, producing a total sentence of 10 years with a non-parole period of 6 years.

The appellant, who was 68 at the time of the offending and 72 at sentencing, had a significant prior history of drug supply offences. Relevant personal circumstances included age, physical health issues (including prostate cancer and macular degeneration), diagnosed Post-Traumatic Stress Disorder and Paranoid Personality Disorder, and ongoing concern for an elderly and frail mother with whom he had lived for much of his life.

  • Whether the degree of partial accumulation (3 years) was manifestly excessive in circumstances where both offences occurred during the same period and arose from the same drug-dealing enterprise.
  • Whether, on re-sentencing, the individual head sentences of 7 years remained appropriate, and what degree of accumulation was warranted.

Decision

The Court of Criminal Appeal dealt only with Ground 4 of the appeal (manifest excess), as counsel for the appellant indicated that success on that ground would make determination of Grounds 1 to 3 unnecessary.

On the question of manifest excess, the Court accepted that the two offences arose from what was, in substance, a single ongoing drug-dealing business. The methylamphetamine supply added an additional dimension to that business, but the Court found the additional criminality represented by the second offence was not substantial enough to justify a three-year accumulation. The degree of partial accumulation was therefore excessive.

The individual head sentences of 7 years for each offence were not challenged and were confirmed as appropriate. However, the Court reduced the period of accumulation from 3 years to 1 year. The sentencing judge's finding of special circumstances was maintained.

The revised overall sentence became 8 years (down from 10 years), with a non-parole period of 5 years. The modified non-parole period for the methylamphetamine count expired on 31 August 2015, rendering the appellant eligible for parole at the time of the Court's orders.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence upheld.
  • Sentences imposed in the District Court on 27 May 2014 confirmed, except that the sentence for count 2 (ongoing supply of methylamphetamine) was varied:
  • Non-parole period for count 2 set at 4 years.
  • Count 2 sentence to commence on 1 September 2011 (rather than 1 September 2013).
  • Overall sentence confirmed as 8 years (1 September 2010 to 31 August 2018) with a non-parole period of 5 years (1 September 2010 to 31 August 2015).
  • The non-parole period for count 2 was noted as having expired on 31 August 2015, with the appellant eligible for release on parole.

Key Takeaways

  • Where two ongoing supply offences arise from the same drug-dealing enterprise during the same period, the additional criminality represented by the second offence may not justify substantial accumulation of sentences.
  • The Court of Criminal Appeal confirmed that some accumulation was nonetheless warranted: the supply of a second, different drug did represent additional criminality, even if not substantial additional criminality.
  • An appellant challenging a sentence as manifestly excessive bears the burden of demonstrating the sentence was unreasonable or plainly unjust, consistent with Markarian v The Queen (2005) 228 CLR 357.
  • In dismissing Grounds 1 to 3, the Court noted that counsel had conceded those grounds required no determination if manifest excess was made out, illustrating a pragmatic approach to multi-ground sentence appeals where grounds substantially overlap.
  • Personal mitigating factors, including advanced age, serious health conditions, and mental health diagnoses, were acknowledged but did not overcome the absence of remorse, poor rehabilitation prospects, and a prior history of similar offending.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW) s 25A (ongoing supply of prohibited drugs; maximum penalty 20 years imprisonment and/or $385,000 fine)

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357 (test for manifest excess on appeal)
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- MMK v R [2006] NSWCCA 272; 164 A Crim R 481
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66