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Court of Criminal Appeal 21 July 2017

Kurniawan v R

[2017] NSWCCA 171

Drugs
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kurniawan v R [2017] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 21 July 2017
Judge(s): Bathurst CJ, McCallum J, N Adams J

Background

The applicant pleaded guilty in the District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). The most serious count (Count 2) involved the supply of 373.5 grams of methylamphetamine, a commercial quantity, carrying a maximum of 20 years' imprisonment and a standard non-parole period of 10 years. The other counts related to smaller quantities of methylamphetamine and 1,4-Butanediol.

The applicant's sentencing history was significant. He had previously been sentenced for drug supply offences and had committed the Count 2 offending while on a "Griffiths remand" (a court adjournment designed to allow a defendant to demonstrate rehabilitation before a final sentence is imposed). The sentencing judge had extended that remand specifically to give the applicant an opportunity to demonstrate his rehabilitation prospects.

On Count 2, Hoy SC DCJ imposed a non-parole period of three years and three months with a balance of term of two years and three months. The total effective sentence across all three counts was six years and three months with a four-year non-parole period. The sentences on Counts 1 and 3 were not challenged. The application before the Court of Criminal Appeal concerned only the Count 2 sentence.

  • Whether the sentencing judge erred by failing to make an adequate finding about the extent of the applicant's involvement in the drug supply, given that the proceedings were conducted on brief agreed facts.
  • Whether the sentencing judge failed to consider where the quantity of drug (373.5 grams) fell within the possible range below the "large commercial quantity" threshold.
  • Whether the sentence imposed on Count 2 was manifestly excessive, having regard to comparable cases.

Decision

On Ground 1, the Court found no error. Where an offender is sentenced on the basis of agreed facts, a sentencing judge is entitled to proceed on those facts without being obliged to make additional findings about the degree of the offender's involvement beyond what the agreed facts establish. The agreed facts here were not silent on the applicant's role: they showed he was present, carrying the drug, and acting in a manner consistent with a lookout or courier. The sentencing judge was not required to speculate further.

On Grounds 4 and 5 (the amended grounds), the Court accepted that the position of a drug quantity within its relevant range can be a relevant sentencing consideration. However, the Court found no demonstrated error in how the sentencing judge approached this factor. The quantity of 373.5 grams sat close to the lower end of the commercial quantity range but well below the large commercial quantity threshold, and the sentencing judge's approach was not shown to have been infected by any misapprehension about those thresholds.

On Ground 3, the Court rejected the submission that the sentence was manifestly excessive. The comparable cases the applicant relied upon were distinguishable: several involved significantly larger discounts for pleas and cooperation with authorities, different criminal histories, or parity considerations that were absent here. The applicant had offended while on a Griffiths remand, demonstrating that the leniency previously extended had not been warranted, and his prior history of drug supply was an aggravating factor.

The Court granted leave to appeal but dismissed the appeal, finding none of the grounds established.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Sentencing on brief agreed facts does not, of itself, require a judge to make additional findings about an offender's precise role or degree of involvement where those facts do not clearly establish the point and the offender does not lead evidence to support a more favourable finding.
  • Where an offender is sentenced on agreed facts that are adverse, and those facts are not disputed or supplemented by defence evidence, the sentencing court is not obliged to speculate in the offender's favour about matters the agreed facts leave open.
  • Offending committed during a Griffiths remand is a weighty aggravating circumstance: the Court of Criminal Appeal treated it as a significant factor undermining any residual claim to leniency on rehabilitation grounds.
  • In dismissing the manifest excess ground, the Court confirmed that comparable sentencing decisions must be assessed with careful attention to the specific discounts, criminal histories, and individual circumstances in each case, rather than by headline sentence comparisons alone.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a history of depressive and anxiety disorders will not mitigate a sentence unless there is either a causal link to the offending or evidence that custody will be more burdensome as a result, citing R v Engert and DPP (Cth) v De La Rosa.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 21A, 33
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- B v R [2015] NSWCCA 314
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- El-Ahmad v R [2015] NSWCCA 65
- Hill v R [2012] NSWCCA 265
- Hili v The Queen (2010) 242 CLR 520
- Kemp v R [2014] NSWCCA 153
- Markarian v The Queen (2005) 228 CLR 357
- Olbrich v R (1999) 199 CLR 270
- Riggio v R [2015] NSWCCA 223
- R v Dinsdale (2000) 202 CLR 321
- R v Engert (1996) 84 A Crim R 67
- R v MacDonnell (2002) 128 A Crim R 44
- Smith v R [2007] NSWCCA 138