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Court of Criminal Appeal 2 June 2017

Sponberg v R

[2017] NSWCCA 120

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE APPLICANT RESENTENCED CRIMINAL LAW APPEAL AGAINST SENTENCE POSSESS AN UNAUTHORISED FIREARM APPEAL AGAINST SENTENCE

Citation: Sponberg v R [2017] NSWCCA 120
Court: Court of Criminal Appeal, NSW
Date: 2 June 2017
Judges: Macfarlan JA (lead judgment); Latham J and Campbell J (agreeing)

Background

The applicant pleaded guilty in the District Court to two offences: supplying a commercial quantity of cocaine (377.64 grams, supplied on six occasions to an undercover police officer between December 2014 and February 2015) and possessing an unlicensed prohibited firearm (a semi-automatic rifle found at his home). He was 42 years old at the time, had no criminal record, and worked as a carpenter. A diagnosed substance use disorder and a period of low mood and marital breakdown preceded his offending.

The District Court sentenced him to 6 years and 6 months imprisonment (non-parole period of 3 years and 10 months) for the drug supply, and 2 years (non-parole period of 15 months) for the firearm offence, wholly concurrent. Both sentences reflected a 25% discount for early guilty pleas.

The applicant sought leave to appeal against both sentences, arguing errors in the sentencing judge's approach.

  • Whether the sentencing judge failed to take into account the applicant's lack of a criminal record as a mitigating factor on both counts
  • Whether the sentencing judge failed properly to assess the objective seriousness of the cocaine supply offence
  • Whether the sentencing judge failed to consider the requirement under section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (which directs a court not to impose imprisonment unless no other sentence is appropriate) when sentencing for the firearm offence

Decision

Ground 1: Prior good character
The Court of Criminal Appeal dismissed this ground. The sentencing judge had explicitly referred to the absence of a criminal record both when describing the applicant's personal circumstances and when considering special circumstances for the non-parole period. The Court noted that sentencing is an "instinctive synthesis" of all relevant factors; it is neither necessary nor appropriate to separately quantify the weight given to each factor (except for guilty plea discounts and assistance to authorities).

Ground 2: Objective seriousness of the drug supply offence
This ground succeeded. The sentencing judge had not expressly located the offending within the range of possible objective seriousness for the offence. The Court noted that the commercial quantity range for cocaine spans 250 to 1,000 grams, and the quantity here (377.64 grams) fell in the lower portion of that range. Several features were relevant to relative seriousness: the drugs were supplied entirely to an undercover officer and did not enter the community; the applicant was drawn into the scheme after repeated refusals; he was a retailer rather than a higher-level operator; and his total profit was modest. The Court found the offence sat below the mid-range of objective seriousness.

Ground 3: Section 5 and the firearm offence
The Court also dismissed this ground. Section 5 requires a sentencing court to consider whether any other sentence is appropriate before imposing imprisonment. The sentencing judge's remarks, read as a whole, disclosed an implicit recognition that full-time custody was warranted, given the sentence on Count 1 and the wholly concurrent nature of the firearm sentence. No identifiable error was established on this ground.

Resentencing on Count 1
Having found error on Ground 2, the Court resentenced the applicant on the drug supply count. After reviewing comparable decisions and Judicial Commission statistics (noting the limited sample of 11 cases), the Court determined a pre-discount sentence of 7 years was appropriate, reducing to 5 years and 3 months after the 25% guilty plea discount. Special circumstances were found, producing a non-parole period of 3 years and 6 months. This was less than the District Court sentence, which was accordingly quashed.

Orders Made

  • Leave to appeal granted in respect of Count 1 (cocaine supply)
  • Appeal allowed on Count 1
  • District Court sentence on Count 1 quashed
  • Applicant resentenced on Count 1 to 5 years and 3 months imprisonment, commencing 26 February 2015, with a non-parole period of 3 years and 6 months and a balance of term of 1 year and 9 months
  • Count 2 sentence (2 years, wholly concurrent) remained effective
  • Applicant eligible for parole from 26 August 2018

Key Takeaways

  • A sentencing court must expressly locate an offence within the spectrum of objective seriousness for the relevant offence category; failure to do so can constitute error warranting appellate intervention and resentencing.
  • Where cocaine supply falls within the lower portion of the commercial quantity range (250 to 1,000 grams), supply solely to an undercover officer, a limited role as a street-level retailer, and recruitment after initial reluctance are all factors capable of reducing assessed objective seriousness.
  • Prior good character and absence of criminal record need not be separately quantified or discussed at length in a sentencing judgment, provided the sentencing judge has clearly identified those factors as part of the overall synthesis.
  • Under the instinctive synthesis approach affirmed in Markarian v The Queen (2005) 228 CLR 357, it is neither necessary nor appropriate for a sentencing judge to assign numerical weight to individual mitigating factors (other than the guilty plea discount).
  • Judicial Commission statistics were treated as a useful but limited reference point in this case, given the small sample size (11 comparable matters), and comparable appellate decisions provided the more reliable guidance for assessing sentencing range.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), Sch 1
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 39(1), 63(3)

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455
- Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107
- Tapai v R [2009] NSWCCA 246
- Parris v R [2013] NSWCCA 5
- AB v R [2013] NSWCCA 273
- R v Sciberras (2006) 165 A Crim R 532; [2006] NSWCCA 268
- R v Campbell [2014] NSWCCA 102
- R v Van Ryn [2016] NSWCCA 1
- Auon v R [2011] NSWCCA 284
- R v Taouk (1992) 65 A Crim R 387
- R v Zamagias [2002] NSWCCA 17
- R v Cage [2006] NSWCCA 304