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Court of Criminal Appeal 1 December 2016

Greenyer v R

[2016] NSWCCA 272

Drugs
CRIMINAL SENTENCE APPEAL ONGOING SUPPLY OF PROHIBITED DRUG SUPPLY OF PROHIBITED DRUG COMMENCEMENT DATE ADJUSTED APPEAL OTHERWISE DISMISSED

Citation: Greenyer v R [2016] NSWCCA 272
Court: Court of Criminal Appeal, NSW
Date: 1 December 2016
Judge(s): Meagher JA, Rothman J, Button J

Background

The appellant pleaded guilty in the Local Court to two offences under the Drug Misuse and Trafficking Act 1985 (NSW): ongoing supply of methylamphetamine (commonly known as ice), and a separate supply offence based on an agreement to supply. A Form 1 charge of knowingly allowing premises to be used as drug premises was also taken into account on sentence. The District Court sentenced the appellant in February 2016.

The offending involved repeated sales of crystal methylamphetamine to an undercover operative between 1 and 10 December 2014, totalling approximately 7.39 grams, with a further agreement on 17 December 2014 to supply over 14 grams. The premises from which supply occurred had been modified to minimise detection. The appellant, aged 35 at sentence, had no prior criminal record and had made substantial progress in rehabilitation at a residential centre following a period on remand.

The District Court imposed an aggregate head sentence of three years with a non-parole period of one year and nine months, backdated to 19 July 2015. The appellant sought leave to appeal on two grounds: a mathematical error in the commencement date calculation, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge made an error in calculating the commencement date of the aggregate sentence.
  • Whether the aggregate sentence of three years (with a non-parole period of one year and nine months) was manifestly excessive in all the circumstances.

Decision

Ground 1: Commencement date error

Both parties agreed that the sentencing judge had made a mathematical slip when calculating the backdate, and that the correct commencement date should be 19 June 2015 rather than 19 July 2015. The Court accepted that this confined error did not require a full resentencing exercise under s 6(3) of the Criminal Appeal Act 1912 (NSW), consistent with the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601. Ground 1 was upheld and the commencement date was adjusted accordingly.

Ground 3: Manifest excess

The Court rejected the argument that the aggregate sentence was manifestly excessive. Button J identified several reasons to distinguish the agreement-to-supply offence from the ongoing supply offence: it involved a different mode of supply, a substantially larger quantity (over 14 grams compared with the largest actual supply of 3.42 grams), and a down-payment of $2,500. These features justified implicit cumulation of nine months in the aggregate sentence.

The Court also held that the sentencing judge's discretion regarding cumulation and concurrence was well established and had been properly exercised. Notwithstanding the appellant's personal circumstances and rehabilitation efforts, the Court found that neither the aggregate head sentence of three years nor the non-parole period of one year and nine months was excessive, noting that the non-parole period in fact reflected a degree of leniency. Ground 3 was dismissed.

Orders Made

  • Leave to appeal granted.
  • The aggregate sentence imposed by Judge Blackmore SC was quashed.
  • The appellant was re-sentenced to an aggregate head sentence of imprisonment for three years, with a non-parole period of one year and nine months, commencing 19 June 2015.
  • The appellant's parole release date was set at 18 March 2017.

Key Takeaways

  • A mathematical error in calculating a sentence commencement date can be corrected on appeal without triggering a full resentencing under s 6(3) of the Criminal Appeal Act 1912 (NSW), provided the error is confined, consistent with Kentwell v The Queen.
  • Sentencing courts retain broad discretion over cumulation and concurrence, including when imposing an aggregate sentence; that discretion will not readily be disturbed on appeal.
  • Where an agreement-to-supply offence involves a substantially larger quantity and different circumstances from the offending captured in an ongoing supply charge, treating it as a separate matter attracting additional imprisonment may be well open to a sentencing judge.
  • In assessing manifest excess, the Court of Criminal Appeal confirmed that the focus must ultimately rest on the aggregate sentence actually imposed, not only on individual indicative sentences.
  • Significant subjective factors, including a complete absence of prior criminality and demonstrated rehabilitation progress, do not automatically render a custodial sentence manifestly excessive for serious commercial drug supply offending.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A, 32, 36Y(1)(a)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McKellar v R [2010] NSWCCA 295