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Court of Criminal Appeal 19 October 2016

Elchiekh v R

[2016] NSWCCA 225

Drugs
CRIMINAL LAW SENTENCE APPEAL METHYLENEDIOXY METHAMPHETAMINE SENTENCE

Citation: Elchiekh v R [2016] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 19 October 2016
Judges: Price J (with Button J and Fagan J agreeing)

Background

The applicant was convicted by a jury in the District Court at Parramatta on four drug supply offences arising from a police search of his leased premises in May 2005. Police found 294.28 grams of methylamphetamine, 11.05 grams of MDMA, 409.7 grams of ketamine, and 1,689.1 grams of cannabis leaf, along with over $13,500 in cash, a notebook listing names and amounts, and nine SIM cards. The applicant was not present during the search and was not located until his arrest in June 2012, some seven years after the offending.

In November 2013, the sentencing judge imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 7 years 6 months. The applicant sought leave to appeal out of time, challenging both the process and the outcome of sentencing.

  • Whether the sentencing judge applied the wrong maximum penalty when sentencing for count 4 (cannabis supply), recording it as 15 years when the correct maximum was 10 years
  • Whether the judge failed to give proper consideration to the seriousness of each offence
  • Whether the judge erred in treating only half of the seven-year delay between offending and arrest as a mitigating factor
  • Whether the aggregate sentence was manifestly excessive
  • Whether an arithmetical error in calculating pre-trial custody warranted correction (raised by the Crown)

Decision

The Court accepted that the sentencing judge's remarks contained an internal inconsistency on the applicable maximum penalties. In the opening portion of his remarks, the judge correctly stated that counts 2, 3 and 4 attracted a maximum of 15 years. Later, he referred to a maximum of 10 years for counts 2, 3 and 4. The Court found this disclosed error in the sentencing process and proceeded to re-sentence.

On the delay ground, the applicant argued that the full seven-year period between offending and arrest should have been taken into account as mitigation, not merely half of it. The Court of Criminal Appeal confirmed the principle from cases such as R v Todd and R v Kay that delay between offending and arrest or trial can constitute a mitigating factor where it results in real uncertainty and anxiety for the offender. However, the Court found that the judge had, in substance, taken the full period of delay into account in the circumstances, and in any event the appropriate approach was to assess the impact of that delay on the individual.

Re-sentencing on the merits, the Court found the objective seriousness of count 1, involving a commercial quantity of methylamphetamine, was properly characterised as just below the mid-range. The totality of the offending, involving multiple drug types and clear indicators of supply for profit, supported a significant sentence. The applicant had no relevant prior record, had prospects of rehabilitation given seven years without further offending, and faced genuine hardship including the illness of his former partner and responsibility for their child. Taking all factors into account, the Court was satisfied that the aggregate sentence of 10 years was appropriate and no lesser sentence was warranted.

The Crown drew the Court's attention to an arithmetical error in the original backdating of the sentence: the judge credited 304 days of pre-trial custody when the agreed figure was 314 days. Both parties agreed the sentence should be adjusted to correct this, resulting in the start date being moved back by a further 10 days.

Orders Made

  • Leave to appeal out of time granted
  • Appeal dismissed
  • Sentence adjusted to correct pre-trial custody calculation: non-parole period of 7 years 6 months to commence 29 December 2012 and expire 28 June 2020; balance of term of 2 years 6 months to commence 29 June 2020 and expire 28 December 2022
  • Applicant eligible for release on parole on 28 June 2020

Key Takeaways

  • Where error is identified in a sentencing judge's remarks, the Court of Criminal Appeal will re-sentence independently rather than simply correct the identified error, assessing all relevant factors afresh.
  • Delay between the commission of an offence and an offender's arrest can constitute a mitigating factor in sentencing, reflecting the uncertainty and anxiety experienced during that period, consistent with principles established in R v Todd.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the aggregate sentence of 10 years for multiple serious drug supply offences, where the offender was found to be supplying for profit across several drug types, was appropriate and within range.
  • An arithmetical error in calculating pre-trial custody is a correctable matter and, where agreed between the parties, will be adjusted on appeal even when not raised as a ground by the applicant.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty for supply of a commercial quantity of methylamphetamine is 20 years imprisonment with a standard non-parole period of 10 years, while supply offences under s 25(1) attract different maxima depending on the drug involved.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29

Cases:
- Ballard v R [2011] NSWCCA 193
- Baxter v R [2007] NSWCCA 237
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Nguyen v R [2011] NSWCCA 127
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Blair [2005] NSWCCA 78
- R v Blanco [1999] NSWCCA 121
- R v Hathaway [2005] NSWCCA 368
- R v Kay [2004] NSWCCA 130
- R v MacDonnell [2002] NSWCCA 34
- R v Shorten [2005] NSWCCA 106
- R v Spiers [2008] NSWCCA 107
- R v Todd [1982] 2 NSWLR 517
- Sabra v R [2015] NSWCCA 38
- Zreika v R [2012] NSWCCA 44