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Court of Criminal Appeal 16 April 2015

El-Ahmad v R

[2015] NSWCCA 65

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE OFFENCE OF COMMERCIAL SUPPLY OFFENCE OF ONGOING SUPPLY CROHN’S DISEASE

Citation: El-Ahmad v R [2015] NSWCCA 65
Court: Court of Criminal Appeal, NSW
Date: 16 April 2015
Judges: Beazley P at [1]; R A Hulme J at [2]; Adamson J at [80]

Background

The applicant was sentenced in the District Court at Parramatta in May 2014 to an aggregate term of 5 years 6 months imprisonment, with a non-parole period of 4 years, for two offences: commercial supply of a prohibited drug (nexus, a hallucinogenic substance) and ongoing supply of methylamphetamine on three or more separate occasions for financial reward. Both offences carried a maximum penalty of 20 years imprisonment, with the commercial supply offence also carrying a standard non-parole period of 10 years.

The offences arose from an undercover police investigation in mid-2012. The applicant acted as an initial contact and intermediary, facilitating drug transactions with undercover officers, sometimes delivering drugs herself and sometimes connecting officers with a co-offender. She was arrested in June 2012.

The applicant had a lengthy criminal history, significant personal hardship, serious health conditions including Crohn's disease and a history of drug-induced psychosis, and a long history of substance abuse. Pleas of guilty were entered on the day the trial was due to commence, following notice to the Crown approximately one month earlier.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge erred in assessing the applicant's subjective circumstances
  • Whether there was error in the application of the finding of special circumstances to the reduction of the non-parole period
  • Whether a justifiable sense of grievance arose from the disparity between the applicant's sentence and that imposed on her co-offender
  • What discount was appropriate for a guilty plea entered on the day of trial

Decision

The Court of Criminal Appeal, with R A Hulme J writing the principal judgment (with Beazley P and Adamson J agreeing), found that three of the six appeal grounds were made out. Leave to appeal was granted and the appeal was allowed.

The Court found that the sentencing judge erred in assessing the objective seriousness of the offences. The Court accepted that the objective seriousness should have been placed below the mid-range, taking into account the nature and extent of the applicant's role, the quantities involved, and the relevant circumstances of the supply. No error, however, was identified in the sentencing judge's assessment of the applicant's subjective features.

The Court found that although a finding of special circumstances had been made, the reduction in the non-parole period was insufficient to give proper effect to that finding. This, combined with the erroneous assessment of objective seriousness and a justifiable sense of grievance arising from the disparity with the co-offender's sentence, meant the sentencing discretion had miscarried.

On the question of the guilty plea discount, the Court applied the principle from Kentwell v The Queen that a 25 per cent discount is only available in exceptional circumstances where a plea is entered on the day of trial. The Court held that a discount of 15 per cent was appropriate here, arriving at indicative sentences of approximately 3 years 4 months for the commercial supply offence and 2 years 6 months for the ongoing supply offence. Applying the principles of totality and partial accumulation, the Court imposed an aggregate sentence of 4 years with a non-parole period of 2 years 2 months.

Orders Made

  • Leave to appeal against sentence granted and appeal allowed.
  • Sentence imposed in the District Court on 2 May 2014 quashed.
  • Applicant sentenced to an aggregate term comprising a non-parole period of 2 years 2 months and a balance of term of 1 year 10 months, dating from 9 April 2013, with the non-parole period expiring on 8 June 2015 and the total term expiring on 8 April 2017.

Key Takeaways

  • A guilty plea entered on the day of trial attracts a discount of no more than 15 per cent; the 25 per cent discount is reserved for exceptional circumstances, consistent with the High Court's approach in Kentwell v The Queen.
  • Where a sentencing court makes a finding of special circumstances, the non-parole period must be reduced sufficiently to give meaningful effect to that finding; a nominal or inadequate reduction may itself constitute a ground of error.
  • Sentencing discretion can miscarry where a combination of errors, including incorrect assessment of objective seriousness and insufficient reduction of the non-parole period, produce an unjust result even if no single error standing alone would necessarily have been decisive.
  • A justifiable sense of grievance arising from disparity with a co-offender's sentence remains a recognised basis for appellate intervention in NSW, and the Court of Criminal Appeal took this into account in determining that a lesser sentence was warranted.
  • In applying the totality principle to partially accumulated sentences, the degree of accumulation must be sufficient to reflect the separate criminality of each offence; an accumulation so slight as to substantially obliterate punishment for distinct conduct may be inadequate.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2) and 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Kentwell v The Queen [2014] HCA 37
- House v The King [1936] HCA 40; 55 CLR 499
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- MD v R [2015] NSWCCA 37
- R v Giang [2005] NSWCCA 387
- R v Pan [2005] NSWCCA 114
- R v Sutton [2004] NSWCCA 225