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Court of Criminal Appeal 2 June 2017

Trejos v R

[2017] NSWCCA 122

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL GROUNDS OF APPEAL MADE OUT NEED TO RESENTENCE APPEAL DISMISSED.

Citation: Trejos v R [2017] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 2 June 2017
Judges: Hoeben CJ at CL, Fullerton J, Hamill J

Background

The applicant was sentenced in the District Court on 29 April 2016 for three offences of supplying a commercial quantity of cocaine (each involving approximately 500 grams) and one offence of knowingly dealing with the proceeds of crime totalling $104,500. The offending occurred between September 2014 and February 2015 as part of an organised operation in which the applicant acted as the "up-line" supplier to another individual, who in turn sold the cocaine to a third party during a series of monitored and recorded transactions.

Police intercepted telephone communications, conducted physical surveillance, and ultimately arrested both the applicant and his co-offender at the scene of the final supply. Upon arrest, the applicant volunteered that cocaine was in his glove box, participated in a recorded interview, and made full admissions to his role in the drug supply operation.

The total effective sentence imposed at first instance was 11 years' imprisonment, with a non-parole period of 7 years commencing 23 February 2015. The applicant sought leave to appeal to the Court of Criminal Appeal on several grounds.

  • Whether the sentencing judge wrongly took into account, as an aggravating factor, that the offences were committed without regard to public safety (Ground 2)
  • Whether the sentences were manifestly excessive (Ground 3)
  • Whether the sentencing judge incorrectly stated the maximum penalty for each of the three commercial supply offences (Ground 4)

Decision

The Court found that grounds of appeal were made out. The sentencing judge had incorrectly stated the maximum penalty for the supply offences and had taken into account an aggravating factor (lack of regard for public safety) in circumstances where the Court was not satisfied that factor was properly established on the facts. These errors triggered the obligation to exercise the sentencing discretion afresh, consistent with the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601.

However, all three members of the Court agreed that, on re-sentencing, no lesser sentence was warranted in law. Hoeben CJ at CL characterised the offending as serious, noting the applicant's pivotal role, the organised and commercial nature of the drug supply, and the course of conduct spanning several months. His Honour considered that a greater degree of accumulation of individual sentences was called for to properly reflect the totality of the criminality, and would have imposed a longer total effective sentence on re-sentence.

Fullerton J agreed that no lesser sentence should be imposed, describing the total effective sentence as relatively moderate given the applicant's committed course of offending and central role in three separate commercial cocaine supplies. Her Honour observed that the applicant had himself described drug dealing as his "business."

Hamill J also agreed the appeal should be dismissed but took a different view on accumulation. His Honour considered the offences represented a course of conduct over a short period and would have applied a similar degree of concurrence and accumulation as the original sentencing judge, concluding the sentence imposed on re-sentence would be not less than the original. All three judges agreed that the orders should be leave granted and the appeal dismissed.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • Established sentencing error, including misstatement of a maximum penalty and incorrect identification of an aggravating factor, triggers the requirement to exercise the sentencing discretion afresh, even where the appellate court ultimately imposes no lesser sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that re-sentencing does not automatically result in a more favourable outcome for an applicant; if the sentence remains appropriate after the errors are corrected, the original sentence stands.
  • The principle of totality requires individual sentences to reflect the gravity of each offence while the total effective sentence reflects the overall criminality, but this remains a discretionary judgment on which different courts may properly reach different conclusions.
  • All three judges reached the same disposition despite disagreeing on the appropriate degree of accumulation, illustrating that the totality principle operates as a matter of judicial discretion rather than a fixed formula.
  • Where an offender plays a central, organising role in a series of commercial drug supply transactions conducted as a business, the Court of Criminal Appeal treated such conduct as serious criminality warranting significant terms of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(i), 21A(2)(o)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- JT v R [2012] NSWCCA 133
- Dang v R [2014] NSWCCA 47
- Skocic v R [2014] NSWCCA 225
- Lehn v R [2016] NSWCCA 255
- Potts v R [2017] NSWCCA 10
- Mansour v The Queen [2011] NSWCCA 28; 209 A Crim R 275
- R v Tuala [2015] NSWCCA 8
- Regina v CN [2001] NSWCCA 100