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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
Date: 02 June 2017
Judge(s): Macfarlan JA (with 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 over six occasions between December 2014 and February 2015), and possessing a prohibited firearm without a licence (a semi-automatic rifle discovered at his home). Both the drug supply and the firearm possession came to light following an undercover police operation. The applicant had no prior criminal record and was 42 years of age at the time of the offences.

For the cocaine supply offence, the District Court imposed 6 years and 6 months imprisonment with a non-parole period of 3 years and 10 months, after a 25% discount for an early guilty plea. The firearm offence attracted a wholly concurrent term of 2 years with a 15-month non-parole period. The applicant sought leave to appeal on three grounds.

Legal Issues

  • Whether the sentencing judge failed to consider the applicant's lack of criminal record as a matter going to leniency
  • Whether the sentencing judge failed to assess the objective seriousness of the cocaine supply offence or to identify where it sat on the spectrum of offending
  • Whether the sentencing judge failed to consider the alternatives to imprisonment required by section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) before imposing imprisonment for the firearm offence

Decision

Ground 1 (prior good character): The court rejected this ground. The sentencing judge had clearly taken the applicant's lack of criminal record into account, referring to it both in describing the applicant's personal circumstances and when considering special circumstances for the non-parole period, and describing the applicant as a "hard-working man." The court noted that sentencing is not a mathematical process and that quantification of each individual factor is neither required nor appropriate, beyond the discount for a guilty plea or assistance to authorities (at [21]-[22]).

Ground 2 (objective seriousness): The court upheld this ground. A sentencing judge is obliged to identify where an offence sits on the spectrum from least serious to worst, and a bare reference to the facts and the offence's general seriousness does not satisfy that requirement (at [23]-[24]). The judge's remark that Count 1 involved "a very serious, large amount of drugs" was read as a reference to quantity only, not as an assessment of objective seriousness. This was contrasted with the judge's express statement that the firearm offence sat "near the bottom of seriousness" for its type. The absence of any equivalent assessment for Count 1 constituted an error requiring resentencing (at [25]-[27]).

Ground 3 (alternatives to imprisonment): The court rejected this ground. Although the sentencing judge did not expressly state that he had considered and rejected alternatives to imprisonment, the court was satisfied that this consideration could be inferred from the circumstances. The judge had described the firearm offence as still serious despite being at the low end, was required to take into account the Form 1 offences, and had engaged in explicit discussion of sentencing alternatives only in relation to the co-offender, which implied he regarded imprisonment as inevitable in the applicant's case (at [29]-[31]).

Resentencing on Count 1: On resentencing, the court assessed the objective seriousness of the cocaine supply offence as mid-range (at [41]). Relevant factors included the quantity (above the commercial threshold but well below its upper limit), six occasions of supply over three months, the applicant's capacity to supply at short notice and negotiate price, the profit motive, and the arrangement for a substitute delivery on one occasion (at [34]-[40]). No inference was available that the applicant had been lured into offending that would not otherwise have occurred (at [40]). Special circumstances warranting departure from the standard non-parole period ratio were found, based on the applicant's conduct in custody, good character, and drug dependence and depression (at [44]). The court imposed a head sentence of 5 years and 3 months (after a 25% guilty plea discount from a starting point of 7 years) with a non-parole period of 3 years and 6 months (at [46]).

Orders Made

  • Leave to appeal granted in respect of the sentence on Count 1
  • Appeal allowed
  • District Court sentence on Count 1 quashed
  • Applicant resentenced on Count 1 to 5 years and 3 months imprisonment, commencing 26 February 2015 and concluding 25 May 2020, with a non-parole period of 3 years and 6 months and a balance of term of 1 year and 9 months
  • The Count 2 sentence (2 years, wholly concurrent) remains in force; total effective sentence is as stated for Count 1
  • Applicant eligible for release on parole on 26 August 2018

Key Takeaways

  • A sentencing judge's failure to assess the objective seriousness of an offence, or to place the offending on the spectrum from least to most serious for that offence type, constitutes a sentencing error requiring resentencing on appeal, even where the judge refers generally to the gravity of the conduct (at [23]-[27]).

  • A bare reference to the quantity of drugs involved does not satisfy the requirement to assess objective seriousness; quantity is a relevant factor but not the only or chief one (at [25]).

  • Where a sentencing judge's consideration of alternatives to imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not expressed, an appellate court may infer that the required consideration occurred from the overall conduct of the sentencing proceedings, including discussions about alternatives confined to co-offenders (at [29]-[30]).

  • On resentencing after a sentence appeal succeeds, the appellate court exercises its sentencing discretion afresh and does not assess whether the error changed the outcome; if the result is lower than the original sentence, the lower sentence is substituted under section 6(3) of the Criminal Appeal Act 1912 (NSW) (at [33], [47]).

  • Supply of a commercial quantity of cocaine to an undercover operative, across multiple occasions, was assessed as mid-range objective seriousness where the quantity was above the commercial threshold but well below its ceiling, and where there was no basis to find the applicant had been lured into offending that would not otherwise have occurred (at [40]-[41]).

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
- AB v R [2013] NSWCCA 273
- Auon v R [2011] NSWCCA 284
- Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Parris v R [2013] NSWCCA 5
- R v Cage [2006] NSWCCA 304
- R v Campbell [2014] NSWCCA 102
- R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
- R v Sciberras (2006) 165 A Crim R 532; [2006] NSWCCA 268
- R v Taouk (1992) 65 A Crim R 387
- R v Van Ryn [2016] NSWCCA 1
- R v Zamagias [2002] NSWCCA 17
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Tapai v R [2009] NSWCCA 246
- Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107
- Urriola v R [2012] NSWCCA 95; R v Urriola [2012] NSWSC 1634
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64