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Court of Criminal Appeal 9 May 2016

Shipman v R

[2016] NSWCCA 83

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG SUPPLY AND FIREARM OFFENCES RANGE OF SERIOUSNESS LEAVE TO APPEAL REFUSED

Citation: Shipman v R [2016] NSWCCA 83
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2016
Judge(s): Leeming JA; R A Hulme J; R S Hulme AJ

Background

The applicant was sentenced in the District Court at Sydney in March 2015 for offences involving the supply of methylamphetamine (at a commercial quantity), cocaine, and cannabis, together with possessing an unregistered firearm and two related summary firearm offences. The sentencing judge imposed an aggregate term of 7 years 2 months imprisonment with a non-parole period of 4 years 8 months. The principal offence was supply of a commercial quantity of methylamphetamine (495.86 grams over approximately 33 weeks), for which the indicative sentence was 5 years 10 months.

The applicant had been identified through a police investigation into a drug supply network connected to an outlaw motorcycle gang, though he was not a member of that gang. He operated from an industrial unit and, at times, organised his teenage son to handle drug supply in his absence. The firearm involved was a working pistol stored at a friend's home; the applicant sought its retrieval shortly after being assaulted at a clubhouse in March 2012.

The applicant sought leave to appeal against the aggregate sentence on three grounds, each directed at the sentencing judge's assessment of objective seriousness and approach to drug quantities.

  • Whether the sentencing judge erred in placing the principal offence (supply of commercial quantity of methylamphetamine) in the mid-range of objective seriousness
  • Whether the sentencing judge erred by incorporating the criminality of the cocaine and cannabis supply offences into the assessment of the principal methamphetamine offence, rather than assessing each offence discretely
  • Whether the sentencing judge was obliged, for the cocaine and cannabis supply offences, to sentence on the basis that the quantities involved were at the statutory indictable quantity threshold (the minimum triggering the offence)

Decision

On the first ground, the Court found no error in the sentencing judge's assessment of the methamphetamine supply as being in the mid-range of seriousness. The applicant argued that mitigating circumstances, including chronic back pain and the use of drug sale proceeds for personal and legal purposes, should have placed the offence below the mid-range. The Court rejected this, noting there was evidence supporting the judge's finding that the applicant had made a profit from his drug dealing and that his motivation extended beyond personal drug use.

On the second ground, the Court rejected the contention that the sentencing judge had conflated the criminality of different offences. Although the judge made some general observations about the overall offending before addressing each count, the Court found she then conducted a discrete assessment of each offence individually. No error in approach was established.

The third ground was substantially abandoned at the hearing. The written submissions had proceeded on the mistaken basis that counts 2 and 3 were commercial quantity offences, which they were not. When counsel corrected this to argue sentencing should have proceeded on the indictable quantity threshold, the Court found that was precisely how the sentencing judge had approached those counts. The ground had no merit.

R S Hulme AJ agreed with R A Hulme J's reasons but noted a reservation about the correctness of certain passages in Mulato v R that had been quoted in the judgment. As that issue was not argued, his Honour considered it was not the occasion for reconsideration.

Orders Made

No orders were made in this decision.

Key Takeaways

  • No error was established in characterising a commercial quantity methamphetamine supply operation, conducted over 33 weeks with profit-making elements, as falling within the mid-range of objective seriousness.
  • A sentencing judge's preliminary overview of an offender's overall criminal conduct does not constitute impermissible blending of offences where each count is then assessed discretely for objective seriousness.
  • Where facts establish drug supply at an indictable quantity but cannot specify an exact amount, sentencing at the indictable quantity threshold is the correct approach, as the District Court applied here.
  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that grounds of appeal based on a mischaracterisation of the offence charged will not succeed, even where the error is corrected at the hearing.
  • Under the aggregate sentencing regime, identifying indicative sentences for individual counts remains important to ensure the overall sentence accurately reflects the totality of the offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 36(1), 39(1)(a)

Cases
- Mulato v R [2006] NSWCCA 282
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Melikian v R [2008] NSWCCA 156 (referenced in judgment)
- R v McDonald [2002] 128 A Crim R 44 (referenced in judgment)