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6
Court of Criminal Appeal 27 June 2016

Forti v R

[2016] NSWCCA 127

Drugs
CRIMINAL LAW SENTENCING GUILTY PLEA YOUNG OFFENDER SUPPLY PROHIBITED DRUG WHETHER ONGOING SUPPLY

Citation: Forti v R [2016] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 27 June 2016
Judge(s): Basten JA; Rothman J; Fagan J

Background

The appellant was a young man who, at 18 and 19 years of age, supplied MDMA tablets on multiple occasions. The first supply, in November 2014, indirectly contributed to the death of a young woman: she purchased four tablets from the appellant, later shared two with a friend at a dance party, and that friend died of a drug overdose. Further telephone intercepts revealed continued supply activity into early 2015, and a search of the appellant's bedroom uncovered additional MDMA tablets, capsules, and digital scales.

The appellant pleaded guilty and received an aggregate sentence of 22 months' imprisonment in the District Court, comprising a non-parole period of 12 months and a balance of term of 10 months. He had no prior criminal history, had completed a drug rehabilitation program, had ceased drug use, and was assessed as a low risk of reoffending. Nonetheless, the sentencing judge considered full-time custody necessary.

The appellant applied for leave to appeal, arguing primarily that the sentencing judge erred in imposing a custodial sentence at all, and alternatively that the aggregate sentence was manifestly excessive. The application was filed late, with the delay attributed to difficulties obtaining the sentencing transcript.

  • Whether the sentencing judge erred in failing to impose a non-custodial penalty, given the appellant's age, rehabilitation, and personal circumstances
  • Whether the principle favouring rehabilitation over general deterrence for young offenders required a non-custodial outcome
  • Whether the aggregate sentence of 22 months was manifestly excessive
  • Whether the sentencing judge correctly applied the "Ellis discount" (a sentencing reduction for self-incriminating admissions made to police) to each relevant count

Decision

The Court, by majority, rejected the primary ground of appeal. The sentencing judge had properly considered non-custodial options and was entitled to conclude that the nature of the offending, including repeated supply for financial gain and the connection to a young woman's death, required full-time custody. The principle that courts should be reluctant to imprison young offenders does not operate as an absolute bar; it may be moderated where the gravity of the conduct makes imprisonment necessary, particularly where general deterrence is a significant sentencing consideration.

On the question of manifest excess, however, the majority found the aggregate sentence was too high. The Court allowed the appeal and resentenced the appellant to a total of 18 months' imprisonment, comprising a non-parole period of nine months (back-dated so as to have expired on 27 May 2016) and a balance of term of nine months. Special circumstances were found to justify the extended proportion of the sentence served on parole, in light of the appellant's rehabilitation needs.

The Court identified a specific error in the original sentencing: the judge failed to separately identify and quantify the Ellis discount applicable to the second count, where the appellant's admissions during a police interview provided self-incriminating evidence. Under R v Ellis (1986), an offender who volunteers information to police that materially assists the investigation of their own offence is entitled to a sentencing discount reflecting that assistance. The failure to articulate this discount was a procedural error, though Fagan J, in dissent on the outcome, considered that this error did not affect the appropriateness of the original aggregate.

Fagan J would have dismissed the appeal. In his view, the individual indicative sentences and resulting aggregate imposed by the District Court were within the appropriate range when compared with comparable sentencing decisions, and the statistics submitted by the appellant were of no practical assistance in assessing consistency.

Orders Made

  • Leave to appeal granted
  • Appeal allowed (by majority)
  • Sentence imposed in the District Court set aside
  • Appellant resentenced to an aggregate term of 18 months' imprisonment, with a non-parole period of nine months (deemed to have expired 27 May 2016) and a balance of term of nine months

Key Takeaways

  • The principle that courts should avoid imprisoning young offenders is not absolute. Where the objective seriousness of drug supply offences is high and general deterrence is a significant sentencing purpose, full-time custody may remain appropriate even for a first offender with strong rehabilitation prospects.

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can justify a non-parole period that represents a lower proportion of the total sentence than the statutory default, particularly where an offender's rehabilitation needs make extended supervised release appropriate.

  • Under the Ellis principle, an offender who makes self-incriminating admissions to police that go beyond what is necessary to cooperate is entitled to a sentencing discount. Sentencing judges are required to identify and articulate that discount separately for each count to which it applies.

  • Sentencing statistics showing the distribution of penalties for comparable offences were treated by Fagan J as of limited utility. A proper consistency analysis requires close comparison with individual decided cases involving similar objective facts and subjective circumstances, not statistical aggregates.

  • The Court of Criminal Appeal confirmed that repeated drug supply for financial profit ordinarily warrants a custodial sentence, even where the offender is young and has made significant progress toward rehabilitation before sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 23, 53A, 101A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- R v Ellis (1986) 6 NSWLR 603
- KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571
- R v Pham (1991) 55 A Crim R 128
- Wayne William Reid v R [2009] NSWCCA 37
- Smaragdis v R [2010] NSWCCA 276
- R v Saba [2006] NSWCCA 214
- CMB v Attorney-General for NSW [2015] HCA 9; (2015) 317 ALR 308
- Chiang v R [2016] NSWCCA 45
- Panetta v R [2016] NSWCCA 85
- Lago v R [2015] NSWCCA 296
- Nguyen v R [2009] NSWCCA 112
- Braithwaite v R [2005] NSWCCA 451
- Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1
- R v J.R.D. [2007] NSWCCA 55
- R v Clark (NSWCCA, 15 March 1990, unrep)