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Court of Criminal Appeal 10 November 2016

R v Medd (a pseudonym)

[2016] NSWCCA 216

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE MANIFEST INADEQUACY CONSIDERATION OF COMPARABLE SENTENCES SENTENCING

Citation: R v Medd (a pseudonym) [2016] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 10 November 2016
Judges: Beazley P, Garling J, Fagan J

Background

The respondent (referred to by the pseudonym "Medd") pleaded guilty to two charges of supplying a large commercial quantity of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved him acting as an intermediary: sourcing drugs from upstream suppliers to fill orders, and introducing buyers to sellers. The quantities involved were approximately 1.1 kg for the first count and at least 2 kg for the second.

At first instance, Judge Whitford SC DCJ of the District Court imposed an aggregate sentence with a non-parole period of 3 years 6 months and a balance of term of 1 year 2 months (total 4 years 8 months). The sentence commenced from the date of arrest on 29 August 2013. The sentencing judge applied a 25% discount for an early guilty plea on count 1, a 10% discount for the late plea on count 2, and an additional 20% discount on both counts for assistance provided to authorities.

The Crown appealed on the ground that the aggregate sentence was manifestly inadequate, arguing principally that the 20% discount for assistance was excessive given the limited nature of that assistance.

  • Whether the 20% discount allowed for assistance to authorities was excessive, rendering the aggregate sentence manifestly inadequate
  • Whether, when combined with the plea discount, the total discount applied to count 1 was impermissibly high
  • Whether comparable cases supported the sentence as imposed
  • Whether the Court of Criminal Appeal should exercise its residual discretion to leave the sentence undisturbed notwithstanding any error

Decision

The Court found that the sentencing judge erred in applying a 20% discount for assistance to authorities. When combined with the 25% plea discount on count 1, the total discount reached 45%, approaching the 50% figure that this Court has previously stated should not normally be exceeded. Given that the assistance provided was limited in nature, the Court held that 10% was the appropriate discount for assistance on both counts.

The Court also examined comparable sentences, including cases involving supply of comparable quantities of methylamphetamine and heroin. Having regard to those comparisons and to all circumstances bearing on the relative seriousness of the offending, the Court concluded that the discount applied at first instance was unsupportably high and that the resulting sentence did not adequately reflect the total criminality involved in two distinct large commercial supplies.

On the question of residual discretion, the Court held that the Crown had discharged the onus of persuading the Court not to leave the sentence undisturbed, applying the principles from CMB v Attorney-General for New South Wales (2015) 256 CLR 346. The Court resentenced the respondent to an aggregate non-parole period of 7 years and a balance of term of 2 years 4 months, with the sentence commencing from the original date of custody.

Orders Made

  • The appeal is allowed.
  • The aggregate sentence imposed by Judge Whitford SC DCJ on 16 December 2015 is quashed.
  • In lieu thereof, Medd is sentenced to an aggregate sentence for both counts of imprisonment comprising a non-parole period of 7 years commencing 29 August 2013 and expiring 28 August 2020, and a balance of term of 2 years 4 months commencing 29 August 2020 and expiring 28 December 2022.
  • Medd will be eligible for release on parole on the expiry of the non-parole period.

Key Takeaways

  • Under the Court of Criminal Appeal's established approach, a combined discount for guilty plea and assistance to authorities should not normally exceed 50%, and where assistance is limited in scope, a discount of 10% for that component may be appropriate.
  • A 20% discount for assistance requires sufficient justification in the nature and quality of the assistance actually provided; a finding that assistance was limited in value will not support a discount at the higher end of the range.
  • In dismissing the first instance sentence as manifestly inadequate, the Court of Criminal Appeal drew on comparative cases involving supply of large commercial quantities of both methylamphetamine and heroin to calibrate an appropriate aggregate sentence.
  • The residual discretion to leave an erroneous sentence undisturbed is not automatic; the Crown can discharge its onus by demonstrating that the error produced a sentence that did not adequately reflect the total criminality involved.
  • Where two distinct large commercial supply offences are sentenced by way of aggregate, the aggregate must reflect meaningful accumulation, not merely a token addition to the more serious indicative sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases
- AAT v R [2011] NSWCCA 17
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429
- R v Mereb; R v Younan [2014] NSWCCA 149
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318