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Court of Criminal Appeal 18 December 2015

Hanna v R

[2015] NSWCCA 326

Drugs
CRIMINAL LAW SENTENCING PAROLE PERIOD OF THREE YEARS TENDER OF ADDITIONAL EVIDENCE REJECTED WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Hanna v R [2015] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 18 December 2015
Judges: Leeming JA, Johnson J, R A Hulme J

Background

The applicant, a man in his early fifties, pleaded guilty in the Sydney District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved the supply of cocaine on an ongoing basis and the deemed supply of a quantity found at the time of his arrest. He received an aggregate sentence of five years' imprisonment with a non-parole period of three years, commencing March 2014.

The applicant suffered from significant physical disabilities and depression. At sentencing, these conditions were placed before the court as subjective mitigating factors. A discount of approximately 30% was allowed for his early guilty pleas and past assistance to authorities.

On appeal to the Court of Criminal Appeal, the applicant challenged the sentence on four grounds, arguing principally that his health conditions were insufficiently weighted in the sentencing exercise and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give sufficient weight to the applicant's physical disabilities in mitigation.
  • Whether the sentencing process miscarried because the full extent and future effects of the applicant's physical condition were not appreciated at the time of sentence, and whether additional medical evidence should be admitted on appeal to correct this.
  • Whether the sentencing judge erred by failing to treat the applicant's depression as a mitigating factor in relation to the commission of the offences.
  • Whether the aggregate sentence of five years with a three-year non-parole period was manifestly excessive.

Decision

Ground 1 (physical disabilities): The Court found it was open to the sentencing judge to take the applicant's physical condition into account in the manner he did. The applicant had, despite his disabilities, operated effectively as a street-level drug supplier: driving to multiple locations, servicing a customer base, and conducting business over an extended period. This factual context was relevant to the weight properly accorded to his health as a mitigating factor.

Ground 2 (additional medical evidence): The applicant sought to tender fresh medical evidence on appeal, arguing the sentencing judge lacked a full understanding of the future trajectory of his condition. The Court rejected the tender. No miscarriage of justice was occasioned by the absence of that evidence at first instance, and it did not meet the threshold for admission on appeal.

Ground 3 (depression): The Court found no error in the sentencing judge's treatment of the applicant's depression. The relevant principle, drawn from existing authority, is that a medical condition operates most powerfully in mitigation where it causally contributed to the commission of the offence. The sentencing judge was not required to treat the depression as a free-standing mitigating circumstance in the manner the applicant contended.

Ground 4 (manifest excess): The Court was not persuaded that the aggregate sentence was unreasonable or plainly unjust. Johnson J emphasised that the objective gravity of the offending was high: ongoing supply under section 25A carries a maximum of 20 years and reflects a deliberate legislative choice to impose significant sentences on those who engage in a continuing drug trade. The applicant's medical condition, while genuinely relevant, could not be permitted to overshadow the seriousness of the offences.

Orders Made

  • Tender of the additional medical evidence rejected.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may properly limit the mitigating weight given to an offender's physical disability where the evidence shows that, despite the disability, the offender operated effectively throughout the offending conduct.
  • Additional medical evidence sought to be tendered on a sentence appeal will be rejected where no miscarriage of justice is established by its absence at first instance.
  • Under the Drug Misuse and Trafficking Act 1985, section 25A offences (ongoing supply) are considerably more serious than single-supply offences under section 25, reflecting a clear legislative intention to deter those who engage in a continuing drug trade.
  • In dismissing the appeal, the Court confirmed that persuasive subjective considerations, including serious health conditions, must not be allowed to overshadow the objective gravity of the offending: R v Achurch [2011] NSWCCA 186 applied.
  • No error was established in the sentencing judge's treatment of depression as a mitigating factor where no causal link between the depression and the commission of the offences was sufficiently demonstrated.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Achurch v R (No. 2) [2013] NSWCCA 117; 84 NSWLR 328
- Achurch v The Queen [2014] HCA 10; 253 CLR 141
- Bland v R [2014] NSWCCA 82; 241 A Crim R 51
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Grant v R [2014] NSWCCA 67
- Inglesias v R [2006] NSWCCA 261
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
- R v CBK [2002] NSWCCA 457; 135 A Crim R 260
- R v GWM [2012] NSWCCA 240
- Turkmani v R [2014] NSWCCA 186