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Court of Criminal Appeal 30 November 2016

Baias v R

[2016] NSWCCA 269

Drugs
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED

Citation: Baias v R [2016] NSWCCA 269
Court: Court of Criminal Appeal, New South Wales
Date: 30 November 2016
Judge(s): Hoeben CJ at CL, Campbell J, Button J

Background

The applicant was convicted in the District Court of several serious drug offences following a trial by judge alone and earlier guilty pleas. The offences included knowingly taking part in the manufacture of methylamphetamine, supplying a large commercial quantity of methylamphetamine (1,094.5 grams), and two separate offences of supplying heroin in large and commercial quantities. A number of additional lesser offences were taken into account on a Form 1.

The sentencing judge imposed an aggregate sentence of 11 years' imprisonment with a non-parole period of 7 years and 6 months, commencing August 2012. Various discounts were applied for guilty pleas, assistance to authorities, and the focused conduct of the trial on one count.

The applicant sought leave to appeal, raising grounds that the sentencing judge had erred in assessing objective seriousness and in failing to state explicit starting points before applying discounts.

  • Whether the sentencing judge erred by failing to indicate with sufficient precision how far below the mid-range of objective seriousness the methylamphetamine supply offence fell
  • Whether the sentencing judge failed to take into account the applicant's mistaken belief that he was sourcing a precursor chemical, rather than methylamphetamine itself, when assessing one aspect of the offending
  • Whether the sentencing judge's omission to state the mathematical starting points for the indicative head sentences, combined with the apparently fractional nature of those starting points when reverse-calculated, established material error

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing judge had made detailed findings about the objective features of the methylamphetamine offending and had explicitly assessed the offences as below mid-range. The Court held that the law does not require a sentencing judge to state, with precise mathematical specification, exactly where within the range below mid-point an offence falls.

On the second ground, the Court likewise found no error. The sentencing judge had acknowledged, in the factual summary, the applicant's mistaken belief that he was handling a precursor rather than methylamphetamine. That factor had been before the judge and there was no basis to conclude it had been overlooked.

On the third ground, the Court accepted that s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly provides that failure to indicate a starting point does not of itself found a ground of appeal. Although the applicant acknowledged this statutory bar, he argued that the oddity of the fractional figures produced by reverse calculation demonstrated actual mathematical error. The Court rejected this argument. Working backwards from the indicative sentences imposed and the discounts applied, the Court drew the irresistible inference that the judge had adopted round starting points (for example, 8 years and 6 months, and 9 years) and then slightly rounded down the resulting figures to avoid sentences expressed in weeks or days, consistent with the approach endorsed in Ruano v R and Rios v R. No mathematical error was established.

Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge assessing objective seriousness is not required to specify with mathematical precision exactly where within a sub-range an offence sits, provided the overall assessment is clear from the remarks on sentence.
  • Under s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), failure to state indicative starting points before applying discounts does not, by itself, constitute a ground of appeal.
  • No error was established simply because reverse-calculating discounts from the final indicative sentences produced fractional figures. The Court of Criminal Appeal inferred that the sentencing judge had adopted conventional round starting points and then rounded down slightly in the applicant's favour.
  • In dismissing the appeal, the Court affirmed the practice, consistent with Ruano v R [2011] NSWCCA 149 and Rios v R [2012] NSWCCA 8, of avoiding final sentences expressed in weeks or days by modest rounding, where that rounding favours the offender.
  • Mistaken belief about the nature of a substance involved in an offence is a relevant subjective factor, but where the sentencing judge's factual summary clearly records that belief, an appellate court will not lightly infer the factor was disregarded.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(4)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Rios v R [2012] NSWCCA 8
- Ruano v R [2011] NSWCCA 149