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Court of Criminal Appeal 19 September 2016

Cutajar v R

[2016] NSWCCA 222

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE SENTENCE POSSESSION OF PROHIBITED WEAPON WHETHER ADEQUATE REASONS CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Cutajar v R [2016] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 19 September 2016
Judge(s): Price J, Button J, Fagan J (all agreeing)

Background

The appellant pleaded guilty in the District Court to three offences: ongoing supply of cocaine contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), involving four separate transactions of approximately 14 grams each between February and March 2014; supply of 12.6 grams of methylamphetamine in June 2014; and possession of two flick knives at the time of his arrest. The cocaine transactions were conducted with an undercover police operative, and intercepted phone calls supported the inference that the appellant was carrying on a regular distribution trade for profit.

At sentencing, the appellant gave evidence that he had been coerced into the drug supply by a man who threatened to withhold a motorcycle unless the appellant sold drugs on his behalf. The sentencing judge (Williams SC DCJ) rejected this account as implausible and declined to treat it as a mitigating factor. His Honour imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years and 9 months, comprising a non-parole period of 2 years and 7 months.

The appellant sought leave to appeal against the severity of the sentence on three grounds: inadequate reasons for rejecting his evidence, failure to give weight to his account of the circumstances, and manifest excess.

  • Whether the sentencing judge gave adequate reasons for finding the appellant's exculpatory account implausible
  • Whether the sentencing judge erred by failing to give any weight to the appellant's evidence in assessing the objective seriousness of the offending
  • Whether the aggregate sentence was manifestly excessive

Decision

Adequacy of reasons (Grounds 1 and 2): Fagan J held that the sentencing judge's reasons were adequate. His Honour had described the account as "a most improbable scenario," noted the absence of corroboration, and observed that even if taken at face value the account did not establish any real obligation or pressure on the appellant to supply drugs. Fagan J drew on the well-established principles from Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, which confirm that a fact-finding judge is not required to enumerate every specific improbability or trace each step in the chain of reasoning. It was sufficient for the judge to state generally the grounds for rejecting the evidence.

The Court also rejected the suggestion that the sentencing judge had simply ignored the evidence. His Honour had engaged with the account, considered it carefully and found it unpersuasive. The failure to give it mitigating weight followed naturally from that finding, and no appellable error arose.

Manifest excess (Ground 3): Fagan J found the aggregate sentence was not manifestly excessive. Full-time custody for this type of ongoing drug supply has been firmly established as the appropriate starting point in the absence of exceptional circumstances, and the appellant's own counsel conceded before the sentencing judge that no exceptional circumstances existed. The indicative individual sentences nominated by the sentencing judge were consistent with comparable cases, and the appellant's lack of any relevant prior record had already been taken into account: his Honour found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act and adjusted the ratio between non-parole period and balance of term in the appellant's favour. Comparison with the cases of Farkas v R and Dang v R, which the appellant had relied on below, did not demonstrate any inconsistency with sentencing patterns once differences in circumstances were accounted for.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • A sentencing judge who rejects a defendant's exculpatory account as inherently improbable is not required to enumerate every detail of the story found unconvincing. A general statement of the grounds for the rejection, consistent with the principles in Soulemezis v Dudley, is sufficient.
  • Under Soulemezis, fact-finding tribunals may rest credibility assessments partly on intuition and experience, and are not obliged to reduce that reasoning to a formal step-by-step account.
  • Ongoing drug supply under s 25A(1) of the Drug Misuse and Trafficking Act 1985 calls for full-time custody absent exceptional circumstances, a principle the Court of Criminal Appeal reaffirmed by reference to Fayd'Herbe v R, Smaragdis v R, and R v Clark.
  • In dismissing the manifest excess ground, the Court confirmed that the absence of a relevant prior record is a factor to be weighed in the sentencing exercise, but does not of itself require a reduction below the range indicated by comparable cases.
  • Where an aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure) Act, the indicative individual terms nominated by the sentencing judge form an important reference point when an appellate court assesses whether the aggregate is within an appropriate range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Cases:
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Fayd'Herbe v R [2007] NSWCCA 20
- Smaragdis v R [2010] NSWCCA 276
- Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388
- Dang v R [2014] NSWCCA 47
- R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)