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Court of Criminal Appeal 4 November 2016

Leffley v R

[2016] NSWCCA 243

Drugs
CRIMINAL LAW SENTENCING AMPHETAMINE AND COUNT 2 SENTENCE OF 6 YEARS WITH NON BOTH SENTENCES FULLY CONCURRENT FINDING OF SPECIAL CIRCUMSTANCES

Citation: Leffley v R [2016] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 4 November 2016
Judges: Hoeben CJ at CL, Hall J, Davies J

Background

The applicant pleaded guilty in the District Court at Penrith to two counts of supplying a prohibited drug in a commercial quantity, namely amphetamine (922.9g) and methylamphetamine (383.3g), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He was stopped by police during a routine breath test and, after initially denying it, was found to be carrying the drugs concealed among a range of items including 20 mobile phones, tablets, and drug-administering equipment. He also pleaded guilty to three possession offences involving cannabis, cocaine, and oxymetholone, which were dealt with by certificate.

The District Court sentenced the applicant to 6 years imprisonment (non-parole period of 3 years) for the amphetamine supply and 8 years and 6 months (non-parole period of 4 years and 6 months) for the methylamphetamine supply, both sentences running fully concurrently. A 25% discount was applied for the early guilty pleas. The sentencing judge found special circumstances and adjusted the statutory ratio between the non-parole period and head sentence, with the non-parole period representing approximately 52% of the total term.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentences were manifestly excessive and discordant with the factual findings made at sentencing.

  • Whether the sentences imposed were manifestly excessive in all the circumstances, including the applicant's subjective case and his role as a courier
  • Whether the sentences were discordant with the sentencing judge's findings of fact
  • Whether the sentencing judge had properly applied the relevant sentencing principles, including deterrence and the weight given to subjective factors

Decision

Hall J (with whom Hoeben CJ at CL and Davies J agreed) rejected all grounds of appeal. The court found no error in the sentencing judge's approach and concluded that the sentences were well within the available range.

On the question of the applicant's role, the sentencing judge had accepted that he was a courier, but expressly found his level of participation was well above that of a street-level courier. The quantity of drugs involved was significant: the amphetamine was close to the large commercial quantity threshold of 1kg, and the methylamphetamine, while below the large commercial quantity, was still at a meaningful level. The presence of 20 mobile phones and other paraphernalia supported the finding of a more substantial role.

The court reaffirmed the principle from Wong v The Queen and Hili v The Queen that appellate intervention on the ground of manifest excess is not warranted simply because a sentence is markedly different from sentences in other cases. Intervention is only justified where the difference is such that a misapplication of principle must be inferred, even if the specific error cannot be identified. No such misapplication was established here.

The court also noted that the sentencing judge had properly emphasised general deterrence in the context of commercial drug supply offences, and had given appropriate weight to all subjective circumstances, including the applicant's early guilty plea, his background, and the pre-sentence and psychological reports tendered on his behalf.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of "courier" status does not automatically place an offender at the lower end of the culpability range; the nature and extent of the courier's role remains a distinct factual question for the sentencing court.
  • Appellate intervention for manifest excess requires more than a significant difference between the sentence imposed and sentences in comparable cases; the difference must be such that a misapplication of principle can be inferred, following Wong v The Queen (2001) 207 CLR 584 and Hili v The Queen (2010) 242 CLR 520.
  • Where a sentencing judge expressly considers all relevant subjective circumstances, including an early guilty plea, psychological and pre-sentence reports, and personal background, a resulting sentence is unlikely to be characterised as discordant with the factual findings.
  • General deterrence carries particular weight in the sentencing of commercial drug supply offences, and a sentencing court's emphasis on that factor will not itself constitute error.
  • A 25% discount for an early guilty plea, combined with a finding of special circumstances adjusting the non-parole ratio, did not render concurrent sentences of up to 8 years and 6 months manifestly excessive for offences involving near-large-commercial quantities of amphetamine and methylamphetamine.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedures) Act 1999 (NSW), s 10A

Cases
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
- Briouzguine v R [2014] NSWCCA 264
- Hill v R [2012] NSWCCA 265