Citation: Shipman v R [2016] NSWCCA 83
Court: Court of Criminal Appeal
Date: 09 May 2016
Judge(s): Leeming JA at [1]; R A Hulme J at [2]; R S Hulme AJ at [53]
Background
The applicant was sentenced in the District Court at Sydney in March 2015 for a series of drug supply and firearms offences committed between August 2011 and April 2012. The offending came to light during a police investigation into an outlaw motorcycle gang, which involved telephone intercepts, listening devices and undercover operatives. The applicant was not a member of the gang but was identified as part of a broader drug supply network connected to it.
The applicant supplied methylamphetamine and cocaine from a panel beating shop where he also lived with his teenage son, whom he at times used to help manage the drug business. A loaded pistol and ammunition were later found at a friend's home, where the applicant had asked him to store a shoebox containing the firearm.
The District Court imposed an aggregate sentence of 7 years 2 months imprisonment with a non-parole period of 4 years 8 months. The applicant sought leave to appeal on several grounds, each challenging the sentencing judge's assessment of objective seriousness and her approach to the quantities of drugs involved.
Legal Issues
- Whether the sentencing judge erred in assessing the principal offence (commercial quantity supply of methylamphetamine) as falling in the mid-range of seriousness
- Whether the sentencing judge improperly considered the criminality of multiple offences together rather than assessing each one discretely
- Whether the judge erred in her approach to the drug quantities relevant to the cocaine and cannabis supply offences
Decision
Ground 1: Mid-range assessment of objective seriousness
The applicant argued that the finding of mid-range objective seriousness was unsupported because his drug-related gains were used to manage chronic pain and fund lawful work, and because the quantities supplied were relatively modest over the period. The Court rejected these submissions. Applying observations from R v Henry, the Court accepted the Crown's position that consuming illicit substances to enhance work performance cannot be condoned and is not morally praiseworthy (at [41]-[42]). The sentencing judge's finding that there was some profit from the supply activities was open to her on the evidence, including the forensic psychiatrist's report (at [39]-[40]). The assessment of objective seriousness was a matter within the discretion of the sentencing judge, and her findings were well open to be made (at [44]-[45]).
Ground 2: Discrete assessment of each offence
The applicant contended that the sentencing judge had improperly rolled together the criminality of all drug supply counts when assessing the principal offence, rather than treating each count separately. The Court rejected this (at [48]-[49]). The preliminary observation the applicant pointed to was an overview only, and the judge immediately followed it with a discrete assessment of the objective seriousness of each individual offence. No error was established.
Ground 3: Approach to drug quantities in the cocaine and cannabis counts
The applicant's written submissions initially proceeded on the mistaken basis that the cocaine and cannabis offences involved commercial quantities, and argued the judge should have sentenced at the commercial quantity threshold. Counsel acknowledged this error at the hearing and reformulated the argument to contend that sentencing should have proceeded on the basis of the indictable quantity threshold. The Court found that this was precisely how the sentencing judge had in fact proceeded (at [50]-[51]). No error was established.
R S Hulme AJ agreed with the orders but noted a reservation about the correctness of the passages cited from Mulato v R. Because those passages had been followed on many occasions and the point was not argued in this case, his Honour considered this was not the occasion to reconsider them (at [53]-[54]).
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- No error was established in the sentencing judge's assessment of commercial quantity methamphetamine supply as falling in the mid-range of objective seriousness, where that assessment was supported by the evidence and fell within the sentencing judge's discretion (at [44]-[45]).
- Under the principles affirmed from R v Henry, an offender's consumption of illicit drugs to manage pain or sustain work capacity does not render the associated drug supply offending less serious or morally praiseworthy (at [41]-[42]).
- A general observation in sentencing remarks about the overall nature of an offender's criminality does not constitute an error if the judge then proceeds to assess the objective seriousness of each individual count separately (at [48]-[49]).
- Where written grounds of appeal rest on a factual or legal error that is conceded at the hearing, the reformulated argument will still fail if it reflects what the sentencing judge actually did (at [50]-[51]).
- R S Hulme AJ flagged, without resolving, a question about the correctness of passages from Mulato v R concerning the breadth of discretion in assessing objective seriousness, leaving that issue open for a future case where it is squarely argued (at [53]-[54]).
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)
- Firearms Act 1996 (NSW)
Cases
- Mulato v R [2006] NSWCCA 282
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346