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Court of Criminal Appeal 31 May 2017

R v Kijurina

[2017] NSWCCA 117

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE DRUG “RIP OFFS” WHETHER NON WHETHER JUDGE HAD MISDIRECTED HIMSELF

Citation: R v Kijurina [2017] NSWCCA 117
Court: Court of Criminal Appeal, New South Wales
Date: 31 May 2017
Judge(s): Hoeben CJ at CL, Price J, Lonergan J

Background

The respondent pleaded guilty in the Local Court to two counts of supplying a prohibited drug in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Both counts arose from a single day in May 2014 and involved methylamphetamine and methylamphetamine oil. The offences were "drug rip-offs": the respondent handed a UCO (undercover operative) bottles of liquid that turned out to contain no prohibited drug, having accepted $700,000 for the transaction.

The respondent's sentencing proceedings first came before the District Court judge in October 2015. They were then subject to repeated adjournments, vacated dates, and requests for additional written submissions by the judge, with sentence ultimately not imposed until October 2016, almost a full year after the respondent's first appearance before the judge.

The sentencing judge imposed two years imprisonment on the first count and 15 months on the second count, both to be served by way of Intensive Corrections Orders (ICOs, a form of supervised non-custodial sentence). The Director of Public Prosecutions appealed, contending the sentences were manifestly inadequate.

  • Whether the non-custodial sentences imposed were manifestly inadequate for two counts of supply of not less than the large commercial quantity of methylamphetamine.
  • Whether the sentencing judge's findings of fact were open on the evidence.
  • Whether the sentencing judge had misdirected himself or failed to properly consider the objective seriousness of the offences.
  • Whether, even if the sentences were manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence the respondent, having regard to the extraordinary delay in the sentencing proceedings.

Decision

Price J (with whom Hoeben CJ at CL and Lonergan J agreed) found that the Crown had established manifest inadequacy. The offences were objectively serious: they involved large commercial quantities of methylamphetamine, with a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Even accepting the respondent's account that he was under duress and that the transactions were rip-offs rather than genuine supply, the objective gravity of the conduct called for full-time custodial sentences. The need for both specific and general deterrence was significant.

Nonetheless, the Court declined to intervene. The court possesses a residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to dismiss a Crown appeal even where manifest inadequacy is established, where re-sentencing would produce an unjust outcome in all the circumstances. The Court found that the extraordinary, largely unexplained delay in the sentencing proceedings fell squarely on the sentencing judge. Since the respondent had pleaded guilty in October 2014, he had built a new business, remained drug-free, and complied fully with the conditions of his ICOs. Resentencing him to full-time imprisonment at that point would, in Price J's assessment, be unjust.

Hoeben CJ at CL added a pointed observation about the systemic consequence of the delay. By imposing unnecessary delay, the sentencing judge had significantly constrained the Court of Criminal Appeal's ability to correct error and impose appropriate sentences. His Honour noted this was not an isolated incident for the particular sentencing judge, referencing three prior decisions where similar concerns had been raised.

Orders Made

  • Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest inadequacy alone does not compel intervention on a Crown sentence appeal: the court retains a residual discretion to dismiss an appeal where re-sentencing would be unjust given all the circumstances.
  • Extraordinary and unexplained delay in sentencing proceedings, attributable to the sentencing judge rather than the offender, was a decisive factor in the exercise of the residual discretion against intervention.
  • Where a respondent has, in the period since sentencing, demonstrated rehabilitation, compliance with sentence conditions, and stability, those matters weigh heavily against the imposition of full-time imprisonment on appeal.
  • The offences in question (drug rip-offs involving large commercial quantities) were treated as objectively serious, warranting full-time custody in the ordinary course, notwithstanding the duress evidence and the absence of actual drugs being supplied.
  • In dismissing the appeal, the Court of Criminal Appeal was explicit that the delay pattern was systemic and had undermined the administration of criminal justice, specifically naming three earlier decisions involving the same sentencing judge as prior examples of the problem.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7 (Intensive Corrections Orders)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of large commercial quantity)
- Evidence Act 1995 (NSW), ss 4(2), 165

Cases
- AB v R [2014] NSWCCA 339
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney General for New South Wales (2015) 256 CLR 346
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- Lowndes v The Queen (1999) 195 CLR 655
- Parris v R [2013] NSWCCA 5
- R v Barker [2016] NSWCCA 193
- R v DW [2012] NSWCCA 66
- R v Greaves [2014] NSWCCA 194
- R v Hinchcliffe [2013] NSWCCA 327
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Yaghi (2002) 133 A Crim R 490
- Turnbull v Chief Executive of the Environment and Heritage [2015] NSWCCA 278
- Vu v R [2006] NSWCCA 188