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Court of Criminal Appeal 15 February 2016

Pannowitz v R

[2016] NSWCCA 13

Drugs
CRIMINAL LAW SENTENCING TOTALITY PRINCIPLE ACCUMULATION AND CONCURRENCY TWO OFFENCES OF DRUG SUPPLY THREE PRIOR OFFENCES OF DRUG SUPPLY

Citation: Pannowitz v R [2016] NSWCCA 13
Court: Court of Criminal Appeal, NSW
Date: 15 February 2016
Judge(s): Hoeben CJ at CL, Davies J, Beech-Jones J

Background

The applicant pleaded guilty to two counts of supplying methylamphetamine. The first offence, involving 62.62 grams, was detected in January 2013 when police stopped a vehicle in a known drug area and found a backpack containing cash, drug paraphernalia, and the drugs. The second offence, involving 40.75 grams, was uncovered in November 2013 when police executed a search warrant at the applicant's home while he was on bail for the first offence.

The applicant had a significant criminal history, including three prior drug supply convictions. At the sentencing hearing, a forensic psychologist's report and the applicant's own evidence addressed his difficult upbringing, including a father who was incarcerated during his early childhood. The sentencing judge also took into account a range of associated offences on Form 1 certificates, including dealing with suspected proceeds of crime, possessing a prohibited drug, and possessing a Taser.

In January 2015, the District Court sentenced the applicant to a fixed term of four years and six months on count one, and a non-parole period of three years (with an additional term of one year and nine months) on count two, partially accumulated. The overall non-parole period was four years and eleven months. The applicant sought leave to appeal.

  • Whether the sentencing judge failed to have proper regard to the totality principle when partially accumulating the sentence for the second offence on top of the first
  • Whether the individual sentences, and the overall effective sentence, were manifestly excessive

Decision

On the totality ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. Davies J acknowledged that the totality principle requires a court to step back and assess whether a combined sentence, viewed as a whole, is appropriate and not crushing. The sentencing judge had partially accumulated the sentences rather than making them fully concurrent, and the court found that partial accumulation was justified given that the second offence was committed while the applicant was on bail for the first.

The court noted that the applicant's commission of the second offence on bail, combined with his criminal history of drug supply spanning multiple prior convictions, represented a seriously aggravating factor. The observation by the sentencing judge that the applicant had repeatedly engaged in drug supply for reward whenever he was at liberty was found to be well supported by the evidence.

On the manifest excess ground, the court rejected the submission that the weight of drugs in each instance should have led to a lower assessment of objective seriousness. Davies J reasoned that, unlike a first-time isolated offence, the weight of drugs found was of less significance when the offences were the fourth and fifth supply charges the applicant had faced. The Form 1 matters further suggested an organised and ongoing drug supply operation. Neither the individual sentences nor the overall sentence was found to be manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that partial accumulation of sentences is appropriate where a second offence is committed while the offender is on bail for the first, and that such an approach does not necessarily breach the totality principle.
  • Applying the totality principle does not require concurrent sentences; the court must assess whether the overall sentence is proportionate and just, and an accumulated sentence may survive that assessment where the offences are distinct and the circumstances are aggravating.
  • In dismissing the manifest excess ground, the court held that the weight of drugs seized carries less weight in assessing objective seriousness where the offences form part of a pattern of repeated, organised drug supply rather than a single isolated incident.
  • No error was established in the sentencing judge's characterisation of the applicant as someone who persistently engaged in drug supply for reward when not in custody, given the volume and nature of his prior convictions.
  • The existence of Form 1 matters suggesting an organised drug business was a relevant factor in assessing the overall seriousness of the offending, beyond the bare quantity of drugs involved in the principal counts.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) (implied, by reference to the offences and maximum penalties)

Cases
- Bugmy v The Queen [2013] HCA 37; (2012) 249 CLR 571
- Dang v R [2014] NSWCCA 47
- House v The King (1936) 55 CLR 499
- Huynh v R [2008] NSWCCA 216
- Khawaja v R [2014] NSWCCA 80
- Pearce v The Queen (1998) 194 CLR 610
- Pham v R [2014] NSWCCA 1115
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
- R v Roby [2003] NSWCCA 243
- Regina v XX [2009] NSWCCA 115
- Stanton v R [2008] NSWCCA 326
- Vandeventer v R [2013] NSWCCA 33
- Wicks v R [2012] NSWCCA 208