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Court of Criminal Appeal 16 December 2016

R v Ejefekaire

[2016] NSWCCA 308

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE S 5D CRIMINAL APPEAL ACT 1912 (NSW) ONGOING SUPPLY OF METHYLAMPHETAMINE WHERE SENTENCING JUDGE IMPOSED AN ICO WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Ejefekaire [2016] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 16 December 2016
Judges: Gleeson JA, Fagan J, N Adams J

Background

The respondent pleaded guilty in the Local Court to ongoing supply of methylamphetamine, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge related to a period of street-level drug supply in the Redfern area between June and September 2014, during which the respondent sold ice for $50 per 0.1g. He was not himself a user of the drug. Four further offences (including possession of cannabis, goods in custody, and unlicensed possession of ammunition) were taken into account on a Form 1.

The respondent was sentenced in the District Court by Syme DCJ to one year and ten months' imprisonment, to be served by way of an intensive correction order (ICO). The sentencing judge found "exceptional circumstances" justifying an ICO on the basis that the respondent needed supervision to assist his rehabilitation and reintegration.

The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate and that the sentencing judge had erred in finding exceptional circumstances to justify a non-custodial order.

  • Whether the sentencing judge erred in finding "exceptional circumstances" under the Crimes (Sentencing Procedure) Act 1999 (NSW) so as to justify an ICO for an offence of ongoing drug supply
  • Whether the sentencing judge erred by failing adequately to assess the objective seriousness of the offending and the respondent's moral culpability
  • Whether the sentencing judge failed to give sufficient weight to general deterrence
  • Whether the resulting sentence was manifestly inadequate
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline resentencing, notwithstanding error

Decision

The Court of Criminal Appeal allowed the Crown appeal and resentenced the respondent to full-time imprisonment. The Court found that the sentencing judge had erred in finding exceptional circumstances sufficient to justify an ICO. A need for supervision to support rehabilitation and community reintegration was not, without more, the kind of exceptional circumstance capable of justifying a non-custodial order for an offence of this nature. The statutory requirement for exceptional circumstances reflects a legislative intention that serious offences generally warrant full-time custody.

The Court also found that the sentencing judge had inadequately assessed the objective seriousness of the offending. The ongoing supply offence involved sustained, commercial-scale street dealing over several months, by a non-user motivated purely by financial gain, using a phone to manage orders and collect debts. The respondent had a significant criminal history, including two prior armed robbery sentences, and had committed the offence shortly after finishing parole. These factors substantially increased the objective gravity of the conduct and the respondent's moral culpability.

General deterrence was identified as a weighty sentencing consideration for this class of offence, particularly given the community harm caused by methylamphetamine supply. The Court accepted that the respondent's genuine remorse and early guilty plea warranted a 25% discount, and acknowledged the positive subjective features, including his engagement with support services and steps towards employment. However, those factors could not displace the need for full-time custody given the objective seriousness of the offending.

The Court gave the respondent full credit for time already spent subject to the ICO since 15 July 2016, and backdated the sentence accordingly.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed by Syme DCJ on 15 July 2016 was set aside.
  • The respondent was resentenced to imprisonment for a non-parole period of 1 year and 9 months, commencing 15 July 2016 and expiring 14 April 2018, with a balance of term of 7 months, expiring 14 November 2018. Total sentence: 2 years and 4 months.
  • The respondent was ordered to be released on parole upon expiry of the non-parole period.

Key Takeaways

  • A need for supervision to support rehabilitation is not, of itself, an "exceptional circumstance" capable of justifying an ICO under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a serious ongoing drug supply offence.
  • Where a sentencing judge fails adequately to assess objective seriousness and moral culpability before imposing an ICO, the Court of Criminal Appeal will treat that as a sentencing error justifying intervention under s 5D of the Criminal Appeal Act 1912 (NSW).
  • General deterrence carries significant weight in sentencing for commercial methylamphetamine supply, and the Court of Criminal Appeal confirmed this applies even where the offender has positive subjective features.
  • Positive rehabilitation steps, genuine remorse, and an early guilty plea are all relevant mitigating factors, but they do not necessarily overcome the need for full-time imprisonment in cases involving sustained and commercially motivated drug supply.
  • Time spent subject to an ICO may be credited against a subsequent sentence of full-time imprisonment where the offender has been subject to a meaningful restriction on liberty.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(2), 31, 33, 44, 50(1)
- Crimes Act 1900 (NSW), s 527C(1)(a)
- Firearms Act 1996 (NSW), s 65(3)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- CMB v Attorney General for New South Wales (2015) 317 ALR 308; [2015] HCA 9
- Delaney v R; R v Delaney [2013] NSWCCA 150
- EF v R [2015] NSWCCA 36
- Forti v R [2016] NSWCCA 127
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Griffiths v The Queen (1977) 137 CLR 293
- Hili v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Polley v R [2015] NSWCCA 247
- The Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39
- Regina v Carrion (2000) 49 NSWLR 149
- R v Hetherington [2016] NSWCCA 165
- Regina v Pogson; Regina v Lapham; Regina v Martin (2012) 82 NSWLR 60