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Court of Criminal Appeal 11 March 2016

Bobbin v R

[2016] NSWCCA 38

Drugs
CRIMINAL LAW SENTENCE APPEAL

Citation: Bobbin v R [2016] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 11 March 2016
Judges: Johnson J, Schmidt J, Wilson J (all agreeing with Wilson J)

Background

The applicant was sentenced in the District Court in September 2014 for two drug offences: knowingly taking part in the supply of not less than the commercial quantity of amphetamine (428 grams), and ongoing supply of amphetamine. The offences arose from a police strike force investigation in 2013 that involved telephone interceptions and physical surveillance. The applicant had facilitated the acquisition and distribution of amphetamine in the Pambula and Eden region of southern New South Wales and had personally supplied multiple individuals with smaller quantities.

For the first offence, to which he pleaded guilty on indictment in the District Court, the applicant received 3 years and 9 months imprisonment with a non-parole period (NPP) of 2 years and 6 months. For the second offence, where he had pleaded guilty in the Local Court, he received 3 years imprisonment with an NPP of 1 year. Both sentences attracted a 25% discount for the utilitarian value of the guilty pleas. The overall custodial term was approximately 5 years and 6 months, with a combined NPP of roughly 3 years and 6 months. A finding of special circumstances was also made, reducing the proportion of the overall sentence served before parole eligibility.

The applicant filed a notice of application for leave to appeal out of time, more than a year after sentencing. The Court of Criminal Appeal extended time but ultimately refused leave to appeal.

  • Whether an extension of time to seek leave to appeal should be granted
  • Whether the sentencing judge failed to properly apply the principle of totality in fixing the overall sentence
  • Whether the overall sentence was manifestly excessive

Decision

Extension of time. The Court granted an extension of time for filing the application, though the delay was considerable. This did not, however, affect the substantive outcome.

Totality. The applicant argued that the sentences, when viewed as a whole, failed to reflect the totality principle, which requires a court to ensure that a combined sentence is proportionate to the overall criminality involved rather than simply the sum of individual sentences. Wilson J rejected this ground. The sentencing judge had structured the sentences with a significant overlap between the two terms, ensuring the overall sentence was not crushing or disproportionate. The finding of special circumstances further reduced the NPP as a proportion of the overall term to 63.6%, and the Court found no failure in the application of totality principles.

Manifest excess. To succeed on this ground, the applicant was required to demonstrate that the sentences were unreasonable or unjust, in the sense of falling outside the range of sound sentencing discretion. The Court found no such error. The sentencing judge had assessed the objective gravity of the offending as serious but below mid-range, taken into account all relevant subjective factors including the applicant's substance abuse disorder, awarded a 25% discount for each plea, and made a finding of special circumstances. Wilson J described both the plea discounts and the special circumstances finding as arguably very generous. No additional amelioration for drug addiction was warranted as it had already been factored in, and to do more would have amounted to impermissible double counting. Because the manifest excess ground depended substantially on the totality ground, and that ground had failed, leave to argue manifest excess was also refused.

Orders Made

  • The time for filing an application for leave to appeal against sentence is extended.
  • Leave to appeal is refused.

Key Takeaways

  • In dismissing the totality ground, the Court of Criminal Appeal confirmed that a sentencing judge structuring consecutive sentences with meaningful overlap can satisfy the totality principle, provided the overall sentence is proportionate to the total criminality involved.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which reduces the NPP as a proportion of the overall term, can itself form part of the sentencing judge's response to subjective mitigating factors such as a history of substance abuse.
  • Where subjective factors such as drug addiction have already been reflected in a finding of special circumstances, further reduction of a sentence on the same basis would constitute impermissible double counting.
  • The standard for manifest excess requires that the sentence be shown to be unreasonable or unjust, not merely that a different outcome was open: the Court applied R v Dinsdale [2000] HCA 54 on this point.
  • Grounds of appeal that depend on an earlier failed ground will generally not independently attract leave where the dependent ground adds nothing beyond the failed primary argument.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1), 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2)
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases
- R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
- R v Pearce [1998] HCA 57; (1998) 194 CLR 610
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Franklin v R [2013] NSWCCA 122
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- LG v R [2012] NSWCCA 249
- Mato v R; Rusu v R [2015] NSWCCA 328
- MMK v R [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66