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Court of Criminal Appeal 10 June 2016

Pleasance v R

[2016] NSWCCA 113

Drugs
CRIMINAL LAW SUPPLY OF PROHIBITED DRUG EXTENSION OF TIME REFUSED

Citation: Pleasance v R [2016] NSWCCA 113
Court: Court of Criminal Appeal, NSW
Date: 10 June 2016
Judges: Beazley P, Schmidt J, Wilson J

Background

The applicant was sentenced in the District Court in October 2014 for supplying heroin, with two further offences taken into account on a Form 1 document: participating in a criminal group and concealing a serious indictable offence. The heroin supply involved approximately 28.80 grams, arising from around 75 individual transactions over a monitored period between June and July 2012. The applicant operated as part of an organised drug supply group in north-western Sydney.

The sentence imposed was 3 years and 9 months' imprisonment, with a non-parole period of 2 years and 9 months. This reflected a 25 per cent discount for an early guilty plea. The applicant filed a Notice of Intention to Appeal out of time in March 2016, and sought an extension of time in which to apply for leave to appeal against the sentence.

The applicant had a significant criminal history, including prior drug, dishonesty, and driving offences, multiple custodial sentences, and a history of breaching every parole order to which she had been subject. She had previously been referred to the Drug Court and had not engaged with residential rehabilitation programs.

  • Whether an extension of time to seek leave to appeal against sentence should be granted
  • Whether the sentencing judge erred in assessing the objective seriousness of the applicant's offending
  • Whether the sentencing judge's conduct during proceedings prevented a proper assessment of the applicant's credibility and prevented her from properly presenting her case
  • Whether the sentencing judge ought to have admitted a letter from the applicant's mother as evidence on sentence
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal refused the extension of time, finding no merit in any of the four proposed grounds of appeal. Wilson J (with whom Beazley P and Schmidt J agreed) analysed each ground in turn and concluded that none disclosed a viable basis for challenging the sentence.

On objective seriousness, the Court found no error in the sentencing judge's assessment. The offending involved organised drug supply over an extended period, approximately 75 transactions, and a significant quantity of heroin. The Court considered that such conduct warranted the weight given to general deterrence, consistent with the principle expressed in authority that even those operating at lower levels of a drug supply network play a necessary role in sustaining criminal enterprises.

On the conduct of the sentencing judge, the Court was not satisfied that any intervention by the judge fell outside the bounds of permissible case management or crossed into undue interference that would constitute appellable error. The applicant's credibility and case were properly before the court.

The exclusion of the mother's letter was not shown to be an error. The Court found that no miscarriage of justice resulted from the letter's exclusion. On manifest excess, the Court concluded that the sentence was neither unjust nor unfair, and that the sentencing judge had appropriately weighed all relevant factors, including the applicant's difficult personal history, her drug dependency, her criminal antecedents, and the absence of sufficient grounds to find special circumstances justifying a reduction in the non-parole period ratio.

Orders Made

  • Extension of time in which to file an application for leave to appeal is refused.

Key Takeaways

  • Refusing the extension of time, the Court of Criminal Appeal found no viable ground of appeal where the applicant's sentence reflected proper consideration of objective seriousness, subjective features, and the applicable discount for a guilty plea.
  • A finding of special circumstances to justify a reduced non-parole period requires significant positive indicators that rehabilitation is likely to succeed on parole; a history of failing to engage with rehabilitation programs and repeated parole breaches may undermine such a finding.
  • General deterrence retains substantial weight in sentencing for organised heroin supply, even where an offender operates at a relatively lower level within the criminal group, given the role such participants play in sustaining the broader enterprise.
  • No error is established in a sentencing judge's exclusion of documentary evidence on sentence where the applicant cannot demonstrate that admission of the material would have affected the outcome or that a miscarriage of justice resulted.
  • Under the principles in House v The King, appellate courts will not interfere with a sentencing discretion unless identifiable error is shown; a sentence that properly accounts for all relevant factors will not be set aside merely because a different outcome was available.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(3), 33
- Crimes Act 1900 (NSW), ss 93T(1), 316
- Evidence Act 1995 (NSW)
- Drug Court Act 1998 (NSW), s 7(3)

Cases
- Ali v R [2010] NSWCCA 35
- Ellis v R [2015] NSWCCA 262
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Mulato v R [2006] NSWCCA 282
- R v Carter [2003] NSWCCA 243
- R v Collin [2000] NSWCCA 236
- R v Falls [2004] NSWCCA 335
- R v Ha [2004] NSWCCA 386
- R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532
- Yuill v Yuill [1945] P 15
- Zammit v R [2010] NSWCCA 29