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Court of Criminal Appeal 11 August 2017

Fato v R

[2017] NSWCCA 190

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE RANGE OF OBJECTIVE SERIOUSNESS RANGE EXTENSION OF TIME REQUIRED

Citation: Fato v R [2017] NSWCCA 190
Court: Court of Criminal Appeal, New South Wales
Date: 11 August 2017
Judges: Johnson J, Davies J, Lonergan J

Background

The applicant had pleaded guilty in 2014 to multiple serious drug and criminal organisation offences, including two counts of supplying a large commercial quantity of methamphetamine (1.36 kg and 9.47 kg respectively), cultivating a large commercial quantity of cannabis, directing the activities of a criminal group, and supplying cannabis. Police had identified the applicant as a principal figure during an eight-month undercover investigation involving surveillance, recorded meetings, and controlled transactions at his rural property.

The applicant was sentenced in April 2016 to an aggregate term of 18 years' imprisonment with a non-parole period of 12 years. The sentencing judge found he was the principal organiser, had recruited all participants, and had sought to minimise his role. The judge assessed the objective seriousness of the offending as above the mid-range.

The applicant sought leave to appeal against sentence on a single ground: that the sentencing judge erred by failing to take into account the low purity of the methamphetamine in counts 2 and 3, which had been assessed at 10% and 13.5% purity respectively. The appeal was filed nearly six months out of time, requiring the applicant to first obtain an extension of time.

  • Whether the sentencing judge erred by not treating the low purity of the methamphetamine as a factor requiring a finding that the offending fell below the mid-range of objective seriousness
  • Whether the applicant was entitled to an extension of time to seek leave to appeal, given the delay and the merits of the proposed ground

Decision

Davies J (with whom Johnson J and Lonergan J agreed) analysed the sentencing judge's treatment of drug purity and found no error. The applicant had relied on the Court of Criminal Appeal's decision in R v Blair, but Davies J concluded that reliance was misplaced. Blair does not establish that low purity automatically or conclusively places an offence below the mid-range of seriousness. Rather, purity is one consideration among many and must be weighed against all other relevant factors.

The sentencing judge had in fact acknowledged the low purity, but found that other matters, including the applicant's role as the principal organiser, the scale of the operations, and the serious Form 1 offences attached to each count, supported a finding above the mid-range. Accepting the applicant's argument would have required the court to place purity above all other considerations, contrary to established sentencing principles requiring a balanced assessment of all relevant factors. Davies J also noted there was no evidence the applicant had any knowledge of the drugs' purity, which further limited the mitigatory weight that factor could carry.

On the extension of time, the Court applied the principles from Kentwell v The Queen and O'Grady v The Queen, which require the interests of justice to be the touchstone. Although the delay was partially explained by the late receipt of the sentencing remarks and written submissions from counsel, the Court found that the proposed ground of appeal had little merit. In those circumstances, granting an extension was not in the interests of justice, and the application was refused.

Orders Made

  • Extension of time to seek leave to appeal against sentence refused.

Key Takeaways

  • Low purity of a prohibited drug does not automatically require a sentencing court to place an offence below the mid-range of objective seriousness; purity is one factor to be weighed alongside all other relevant circumstances.
  • The Court of Criminal Appeal confirmed that R v Blair does not stand for the proposition that low purity is a determinative or overriding consideration in assessing objective seriousness for large commercial drug supply offences.
  • Where a defendant had no apparent knowledge of the purity of drugs involved in the offence, the mitigatory weight available from low purity is further diminished.
  • In refusing an extension of time, the Court applied the Kentwell and O'Grady principle that the interests of justice are the touchstone, and confirmed that weak prospects of success weigh heavily against granting an extension even where delay is partially explained.
  • An overall assessment of objective seriousness that accounts for a principal organiser's role, the scale of the operation, and serious associated offending can properly sit above the mid-range notwithstanding that the drugs in question were of low purity.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38
- R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
- Lorraway v R [2010] NSWCCA 46
- Lowe v R [2013] NSWCCA 141
- Ninness v R [2014] NSWCCA 288
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64