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Court of Criminal Appeal 21 November 2016

OGC v R

[2016] NSWCCA 254

DrugsFirearms & weapons
APPEAL SENTENCE APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE ASSISTANCE WHETHER MISCARRIAGE OF JUSTICE

Citation: OGC v R [2016] NSWCCA 254
Court: Court of Criminal Appeal, NSW
Date: 21 November 2016
Judge(s): Ward JA; Harrison J; R A Hulme J

Background

The appellant was sentenced in the District Court at Gosford on 1 September 2015 for ongoing supply of prohibited drugs (crystalline methylamphetamine) between 23 December 2014 and 6 January 2015, an offence carrying a maximum penalty of 20 years imprisonment. The sentence also took into account four additional offences on a Form 1, including a further supply offence, drug possession, and two counts of possessing unregistered firearms (air rifles).

The appellant had been observed and recorded supplying methylamphetamine to an undercover police officer on three separate occasions, with a total of 20.9 grams supplied for $6,900. He received a 25 per cent discount for the utilitarian value of his guilty plea and was sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months.

On appeal, the appellant challenged the severity of the sentence, ultimately focusing on two complaints: that the sentencing judge wrongly found no evidence of remorse and contrition, and that a miscarriage of justice arose from the failure to tender evidence of his assistance to police at the original sentencing proceedings.

  • Whether the sentence was manifestly excessive, particularly given the sentencing judge's finding that there was no evidence of remorse or contrition
  • Whether the Court should grant leave to adduce fresh evidence on appeal concerning the appellant's alleged assistance to police
  • Whether the failure to tender evidence of assistance at sentencing constituted a miscarriage of justice

Decision

Remorse and contrition: The Court accepted that the sentencing judge's treatment of remorse was the centrepiece of the manifest excess argument, especially in light of the appellant's subsequent claim that his assistance to authorities was relevant to that question. However, this argument was closely tied to the assistance evidence, which the Court ultimately refused to receive.

Assistance evidence: The appellant sought to rely on a series of affidavits describing his dealings with a detective and information he had provided to police. The Crown's evidence, including material from the detective in question, revealed that the appellant had been registered as a police informant and had supplied some information, but that it was largely already known to police, did not lead to any ongoing investigation or arrests, and the appellant had since been de-registered. The police were unable to verify most of the information provided.

Miscarriage of justice: The Court found that an obvious forensic decision had been made at the sentencing proceedings not to call the assistance evidence, and that no adequate explanation was offered for that choice. The appellant did not complain about his former legal advisers. Harrison J concluded that a deliberate decision not to lead available evidence, made for unexplained forensic reasons, does not constitute a miscarriage of justice that would warrant receiving the evidence on appeal.

Would it have made a difference: Even setting aside the procedural bar, Harrison J found the assistance was of such little value that it could not be described as significant or useful. It fell well short of the considerations that ordinarily attract a sentencing reduction for assistance, and would not have produced a different sentencing outcome.

Orders Made

  • Leave to appeal against sentence granted
  • Leave to adduce evidence on appeal refused
  • Appeal dismissed

Key Takeaways

  • A deliberate forensic decision not to call available evidence at a sentencing hearing will ordinarily preclude a later argument on appeal that the omission caused a miscarriage of justice, particularly where no complaint is made about former legal representation and no adequate explanation is offered.
  • The Court of Criminal Appeal confirmed that the mere availability of assistance evidence is insufficient to justify adducing it on appeal; the court must also be satisfied that receiving the evidence could have made a difference to the sentencing outcome.
  • Where information provided to police was largely already known, did not lead to investigations or arrests, and could not be verified, it will not readily satisfy the threshold of "significant or useful" assistance capable of attracting a sentencing discount.
  • Reformulating grounds of appeal during oral argument is permissible at the court's discretion, but leaves the appellant exposed where the new ground is inadequately developed or the underlying evidence is weak.
  • In dismissing the appeal, the Court left the original sentence of 3 years with a 2 year and 3 month non-parole period undisturbed, including the 25 per cent guilty plea discount applied by the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Firearms Act 1996 (NSW), s 36(1)

Cases
- Cornwell v R [2015] NSWCCA 269
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Thomas [2007] NSWCCA 269