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Court of Criminal Appeal 31 August 2016

Clapham v R

[2016] NSWCCA 198

Assault & violenceDrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL

Citation: Clapham v R [2016] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 31 August 2016
Judges: Price J; Davies J; Garling J

Background

The applicant pleaded guilty to four offences: possession of a loaded firearm in a public place, aggravated possession of an unregistered firearm in a public place, malicious damage to property by fire, and deemed supply of a large commercial quantity of a prohibited drug. The drug offence involved 95.23 grams of 251-NBOMe, a synthetic substance, found in the applicant's unit during a police search in November 2013.

The sentencing judge in the District Court imposed an aggregate sentence of 16 years imprisonment with a non-parole period of 10 years, applying a 25 per cent discount for the utilitarian value of the guilty pleas. The judge treated the high street value of the drug (estimated at between approximately $381,000 and $1.4 million) as a significant factor in assessing the objective seriousness of the supply offence.

The applicant appealed on three grounds, the third being that the sentence miscarried because his legal representatives failed to adequately prepare and present his case on sentence. The Crown conceded that ground, and the parties agreed the matter should be remitted for resentencing.

  • Whether the sentencing judge erred in assessing the seriousness of the drug supply offence and the applicant's culpability
  • Whether the sentence was manifestly excessive
  • Whether a miscarriage of justice occurred because the applicant's solicitors and counsel failed to adequately prepare and present his case on sentence, particularly regarding the purity of the prohibited drug

Decision

Because the Crown conceded Ground 3, the applicant did not press Grounds 1 and 2. The Court of Criminal Appeal agreed the concession was appropriately made and moved directly to consider whether the sentence should be quashed and the matter remitted.

The central failure identified was that the applicant's case on the deemed supply charge was never properly presented to the sentencing judge. The applicant's instructions were that he had purchased only approximately 3 grams of 251-NBOMe for around $60, and that the remainder of the 95.23 grams found was sugar he had used to "cut" the substance. Those instructions were not acted upon. His solicitor incorrectly advised the applicant's father that the drug could not be tested for purity, when in fact both the National Measurement Institute and the University of NSW had that capability at the relevant time.

Counsel at first instance did not take instructions on the quantity purchased, the purpose of the purchase, or whether the substance was pure or cut, apparently due to an erroneous belief that the drug could not be cut. Counsel was also unable to confirm that the agreed statement of facts, on which the applicant was sentenced, was ever read to or shown to the applicant.

The Court held that this was one of those exceptional cases where compelling mitigating material was available but was neither tendered nor brought to the sentencing judge's attention due to the conduct of the legal representatives. The failure was directly relevant to the factual findings underpinning the assessment of objective seriousness, and a miscarriage of justice had occurred.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Arnott SC DCJ on 12 February 2015 quashed
  • Matter remitted to the District Court at Sydney to fix a date for resentencing before a judge other than Arnott SC DCJ

Key Takeaways

  • A sentence will be quashed for miscarriage of justice where compelling mitigating material was available at the original sentencing hearing but was not tendered or presented due to failures by the applicant's legal representatives.
  • Incorrect legal advice given by a solicitor, specifically that a drug substance could not be tested for purity when testing facilities did in fact exist, can form part of the basis for establishing that a miscarriage of justice occurred on sentence.
  • Where an agreed statement of facts is tendered on sentence, counsel's inability to confirm that the document was ever read to or shown to the accused is a relevant consideration when assessing whether the sentencing proceedings were properly conducted.
  • The Court of Criminal Appeal confirmed its approach in Zreika v R [2012] NSWCCA 44 and Pym v R [2014] NSWCCA 182, which recognise that exceptional cases warranting intervention arise where available mitigating material is simply not placed before the sentencing judge.
  • Remittal for resentencing before a different judge was ordered, reflecting the Court's assessment that the matter required a fresh approach unconstrained by the original findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93G, 93I, 195
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Zreika v R [2012] NSWCCA 44
- Pym v R [2014] NSWCCA 182