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Court of Criminal Appeal 18 August 2017

R v Nakash

[2017] NSWCCA 196

Drugs
CRIMINAL APPEAL SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE CROWN APPEAL DISMISSED

Citation: R v Nakash [2017] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 18 August 2017
Judge(s): Simpson JA; Button J; N Adams J

Background

The respondent had been convicted of trafficking a commercial quantity of cocaine, an offence under the Criminal Code Act 1995 (Cth). The sentencing judge imposed what the Court of Criminal Appeal ultimately characterised as a very lenient sentence, one that reflected the respondent's compelling personal circumstances, including a difficult upbringing and the highly unfortunate circumstances that drew him back into drug offending.

The Crown (represented by the Commonwealth Director of Public Prosecutions) appealed on the sole ground that the sentence was manifestly inadequate. Crucially, however, the Crown declined to rely on any comparable sentencing decisions to support its argument. It maintained that the respondent's case was "quite unique," combining very serious organised crime conduct with an unusually strong set of subjective mitigating factors.

  • Whether the sentence imposed for trafficking a commercial quantity of cocaine was manifestly inadequate, such that the appellate court should intervene.
  • Whether the Crown could establish manifest inadequacy without identifying comparable sentencing decisions to serve as a yardstick.
  • Whether the combination of serious objective offending and compelling subjective features placed the case outside any meaningful pattern of comparative sentences.

Decision

All three judges agreed that the Crown appeal should be dismissed, though each delivered reasons. Button J provided the primary judgment addressing the facts and circumstances comprehensively. Simpson JA and N Adams J wrote concurring reasons addressing, in particular, the difficulties created by the Crown's approach to the appeal.

The court confirmed that sentencing is a discretionary exercise, and appellate intervention is warranted only where specific error is identified or where the result is unreasonable or plainly unjust, from which an undiscernible error can be inferred. The Crown acknowledged it could point to no error of principle in the sentencing remarks, and instead relied on the proposition that the sentence fell wholly outside the range reasonably available to the sentencing judge.

Simpson JA found the Crown's position paradoxical. On one hand, the Crown argued the sentence was outside the available range and inconsistent with sentencing practice. On the other hand, it refused to identify any comparable cases, asserting the circumstances were too unique to permit comparison. Her Honour declined to accept that there were truly no comparable cases available, noting that the federal trafficking offence is the counterpart of the frequently prosecuted State drug supply offence, and that State decisions could have provided useful guidance.

Ultimately, none of the judges was affirmatively satisfied that the sentence was unreasonable or plainly unjust. Simpson JA described the sentence, and its non-parole period in particular, as sitting very much at the lower end of the spectrum, and noted she may personally have imposed a longer sentence. Nevertheless, she concluded the sentence was open to the sentencing judge's discretion, especially given the compelling subjective features established at first instance and the way in which the Crown presented the appeal. N Adams J agreed, observing the sentence was very lenient but that the Crown had failed to establish a substantial wrong.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A Crown appeal on the ground of manifest inadequacy faces a very high threshold: the appellate court must be affirmatively satisfied that the sentence is unreasonable or plainly unjust, not merely that the appellate judges would themselves have imposed a heavier sentence.
  • Where a Crown appellant declines to rely on comparable decisions, it significantly undermines the consistency argument that typically underpins a manifest inadequacy ground, since courts assess whether a sentence is out of step by reference to what has been done in other cases.
  • The Court of Criminal Appeal confirmed that the consistency sought in sentencing is consistency in the application of principle, not numerical equivalence, following the High Court in Hili v The Queen and The Queen v Pham.
  • In the absence of a developed sentencing pattern for a federal drug trafficking offence, the court may look to State decisions for comparable supply offences as a guiding reference, given the structural similarity between federal and State drug offending provisions.
  • Compelling subjective circumstances can legitimately produce a sentence that sits at the very low end of the available range without necessarily crossing the threshold of manifest inadequacy, provided the sentencing judge has applied correct principle.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), Sch, ss 302.2(1), 400.3(1), 400.9(1A)
- Criminal Code Regulations 2002 (Cth), Sch 4
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Key Cases
- House v The King (1936) 55 CLR 499 (principles for appellate review of discretionary decisions)
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 (sentencing discretion; available range)
- The Queen v Pham (2015) 256 CLR 550 (national consistency in federal sentencing)
- Dinsdale v The Queen (2000) 202 CLR 321 (manifest inadequacy test)
- Markarian v The Queen (2005) 228 CLR 357
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 (consistency in sentencing)
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 (consistency of principle)
- Nguyen v The Queen (2016) 256 CLR 656
- The Queen v Kilic (2016) 339 ALR 229