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Court of Criminal Appeal 15 July 2016

Bidgood v R

[2016] NSWCCA 138

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE CULTIVATE AND SUPPLY PROHIBITED DRUGS ONGOING SUPPLY OFFENDERS

Citation: Bidgood v R [2016] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 15 July 2016
Judges: Bathurst CJ, Davies J, R S Hulme AJ

Background

The appellant was a self-employed landscape gardener in his mid-forties who pleaded guilty in the Local Court to three drug offences: ongoing supply of MDMA, cultivating a commercial quantity of cannabis (303 plants), and supplying 3.2 kg of cannabis. He also had six additional matters taken into account on a Form 1. Police identified him during a controlled operation targeting street-level drug supply in the Katoomba CBD, and he made full admissions in a recorded interview.

At sentence in the District Court, the appellant received an aggregate sentence with a non-parole period of two years and a balance of term of two years. The sentencing judge noted that the appellant supplied drugs to supplement his income as a labourer and had an otherwise clean record apart from a 2004 common assault.

The appellant sought leave to appeal on six grounds, challenging how the sentencing judge characterised the financial motive, treated his good character, drew comparisons with connected offenders, and applied the wrong maximum penalty to the cannabis supply charge.

  • Whether the sentencing judge erred in finding the appellant was the "up-line supplier" to a connected offender
  • Whether it was an error to have regard to sentences imposed on offenders connected to the appellant who were not co-offenders
  • Whether procedural fairness required the appellant to be given an opportunity to address his knowledge of those other offenders' conduct
  • Whether financial gain was erroneously treated as an aggravating factor for the ongoing supply offence (which already incorporates supply for financial reward as an element)
  • Whether the sentencing judge wrongly denied the appellant the benefit of his otherwise good character by reference to the extent of his offending
  • Whether the sentencing judge applied an incorrect maximum penalty to the cannabis supply count

Decision

The Court found errors on three of the six grounds. First, the sentencing judge erred in treating financial gain as an aggravating factor for the ongoing supply offence. Because financial reward is an element of the offence of ongoing supply under the Drugs Misuse and Trafficking Act 1985 (NSW), it cannot simultaneously operate as an additional aggravating circumstance for that count.

Second, the sentencing judge erred in her treatment of good character. The appellant had only one prior conviction from over a decade earlier and was otherwise of good character. The Court held it was error to effectively strip him of the benefit of that good character by reference to the seriousness or extent of the present offending.

Third, the sentencing judge applied an incorrect maximum penalty of 15 years to the count of supplying 3.2 kg of cannabis, when the correct maximum was 10 years. These were each identified as sentencing errors in principle.

Despite finding those errors, the Court concluded that the aggregate sentence, including a generous reduction in the statutory ratio through a finding of special circumstances, was already a lenient one. The Court determined that no lesser sentence was warranted and dismissed the appeal. R S Hulme AJ agreed with the orders but expressed reservations about whether the sentencing judge had actually been influenced by the sentences of the connected offenders, noting her dismissive treatment of the topic in her remarks.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Financial reward cannot operate as an aggravating factor for the offence of ongoing supply under the Drugs Misuse and Trafficking Act 1985 (NSW), because it is an element of that offence rather than a circumstance beyond it.
  • A sentencing court errs by denying an offender the benefit of prior good character on the basis that the present offending was serious or extensive; good character must be given its proper weight as a mitigating consideration.
  • Applying an incorrect maximum penalty to a count constitutes a sentencing error, even where the head sentence falls well within the correct maximum.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that multiple identified errors do not automatically lead to resentencing if the original aggregate sentence was already lenient and no lesser sentence is warranted.
  • Where a connected person is not a co-offender in any meaningful sense, comparing their sentence to the appellant's carries significant risk of error; R S Hulme AJ found on the facts here that the sentencing judge was not actually influenced by those comparisons.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW)

Cases:
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267