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Court of Criminal Appeal 25 November 2016

Vossos v R

[2016] NSWCCA 262

Drugs
CRIMINAL LAW GROUND OF APPEAL NOT MADE OUT LEAVE TO APPEAL REFUSED CRIMINAL LAW

Citation: Vossos v R [2016] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 25 November 2016
Judges: Macfarlan JA, R A Hulme J, Bellew J (judgment delivered by Bellew J, with whom the others agreed)

Background

The applicant pleaded guilty in the District Court to two counts of supplying a prohibited drug (heroin), contrary to the Drug Misuse and Trafficking Act 1985 (NSW). He also asked the sentencing judge to take into account two further offences on a Form 1: participating in a criminal group, and assaulting a police officer in the execution of his duty.

The offending arose from the applicant's involvement in a heroin distribution syndicate operating in south-western Sydney between 2012 and 2015. The syndicate supplied heroin from a fortified granny flat and distributed to buyers at nearby locations. The applicant acted as a "runner," delivering heroin by vehicle, and was personally responsible for 50 separate supply transactions totalling not less than 12.60 grams. One supply involved delivering heroin and syringes to an inmate through the boundary fence of a correctional facility at night.

The District Court sentenced the applicant to an aggregate term of five years imprisonment with a non-parole period of three years and nine months. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to give adequate consideration to evidence of the applicant's limited intellectual capacity and impaired cognitive functioning as a mitigating factor.
  • Whether, in the absence of a demonstrated causal connection between an offender's intellectual impairment and the offending, such impairment can reduce moral culpability on sentence.
  • Whether arguments not advanced before the sentencing judge can be raised for the first time on a sentence appeal.

Decision

The Court rejected the sole ground of appeal. Bellew J confirmed that, where an offender seeks a reduction in moral culpability on the basis of impaired intelligence, there must be evidence establishing a causal connection between that impairment and the offending conduct. No such evidence existed in this case.

The Court noted that, even without a direct causal link, an offender's mental state may still be relevant to sentencing in other ways, including as a factor bearing on general deterrence, conditions of custody, or prospects of rehabilitation. However, none of those arguments had been put to the sentencing judge at first instance. To the contrary, the applicant's then-solicitor had expressly accepted before the sentencing judge that general deterrence was a significant consideration in cases of this nature.

The Court emphasised that a sentence appeal is not a re-hearing of the plea in mitigation. It is not an occasion for revising or reformulating the case that was presented below. The Court declined to entertain arguments that could have been, but were not, advanced at the sentencing hearing.

Finding no merit in the ground of appeal, the Court refused leave to appeal.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • To obtain a reduction in moral culpability on the basis of limited intellectual capacity or impaired cognitive functioning, an offender must establish a causal connection between that impairment and the offending conduct.
  • Where no causal connection is established, an offender's mental state may still be relevant at sentencing in other respects, including its impact on general deterrence, conditions of custody, and rehabilitation prospects, but those matters must actually be raised before the sentencing court.
  • In dismissing the appeal, the Court of Criminal Appeal reiterated that a sentence appeal is not a re-hearing of the plea in mitigation, and the Court will not lightly entertain arguments that could have been, but were not, advanced at first instance: Zreika v R [2012] NSWCCA 44.
  • No error was established in the sentencing judge's approach simply because the judge did not address a matter that was never put to him.
  • The objective seriousness of supplying heroin to a person inside a correctional facility was treated as an aggravating feature of the offending in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 21(1)

Cases:
- Aslan v R [2014] NSWCCA 114
- Elturk v R [2014] NSWCCA 61
- McLaren v R [2012] NSWCCA 284
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Ngati v R [2014] NSWCCA 125
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44