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Court of Criminal Appeal 23 August 2017

Gordon v R

[2017] NSWCCA 199

Drugs
CRIMINAL LAW PAROLE PERIOD OF 1 YEAR, 10 MONTHS WHETHER MISCARRIAGE OF JUSTICE

Citation: Gordon v R [2017] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 23 August 2017
Judge(s): Gleeson JA, Harrison J, Button J

Background

The applicant pleaded guilty on the day of his arraignment in the District Court to two offences of supplying prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW): 39.7 grams of MDMA (ecstasy) and 3.47 grams of crystalline methylamphetamine (ice). A further summary offence of dealing with suspected proceeds of crime was taken into account on a Form 1. The sentencing judge found the applicant's role was that of a street-level seller, supplying drugs partly to fund his own dependency and partly for profit.

Judge Arnott SC sentenced the applicant to an effective head sentence of two years and eight months, with a non-parole period of one year and ten months. The applicant received a ten percent discount for his late guilty plea. The sentencing judge made a finding of special circumstances to extend supervision on release, given the applicant's drug dependency and intellectual impairment.

The applicant then sought leave to appeal against sentence in the Court of Criminal Appeal. He advanced two grounds: first, that the court should receive new evidence concerning his father's terminal illness as a compassionate factor; and second, that the sentence was manifestly excessive.

  • Whether the Court of Criminal Appeal should exercise its discretion to admit new evidence, specifically a medical certificate about the applicant's father's terminal illness, that was not placed before the sentencing judge.
  • Whether the failure to raise that evidence at the sentencing hearing constituted a miscarriage of justice.
  • Whether the total effective sentence of two years and eight months with a non-parole period of one year and ten months was manifestly excessive.

Decision

New evidence of father's illness

The applicant sought to tender a medical certificate from a general practitioner documenting his father's terminal illness as fresh evidence on appeal. The Court found the applicant had been aware of his father's illness before the sentencing hearing but had not raised it with his legal representative or given evidence about it himself. Critically, no complaint of incompetent legal representation was made. The Court declined to exercise its discretion to admit the evidence, finding that its reception would not reveal any miscarriage of justice in the sentencing below.

Manifest excess

The Court examined the sentencing judge's reasoning and found no error. His Honour had correctly assessed both offences as falling within the lower end of the spectrum for drug supply, though not at the bottom of that range. The ten percent discount for a late plea was appropriate and unchallenged. The modest partial accumulation of the two sentences was justified because possession of two different kinds of drugs giving rise to deemed supply could not properly be treated as a single episode of criminality.

The sentencing judge had carefully weighed the applicant's subjective case, including his extremely low intellectual function, probable cognitive impairment at the time of offending, lengthy criminal history, limited remorse, and guarded prospects of rehabilitation. The Court found the ratio of non-parole period to head sentence (68.75 percent) was consistent with the finding of special circumstances and could not be impugned. The sentences were neither unreasonable nor unjust.

Orders Made

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

Key Takeaways

  • An appellate court will not readily admit new evidence on a sentencing appeal where the applicant was aware of the relevant facts before sentence and chose not to raise them, particularly in the absence of any complaint about the quality of legal representation received.
  • The principle that possession of two distinct types of prohibited drug, each giving rise to a deemed supply charge, can properly support partial accumulation of sentences was confirmed, following Luu v R [2008] NSWCCA 285.
  • Cognitive impairment and extremely low intellectual function do not automatically warrant mitigation of sentence; the sentencing court retains a discretion to assess whether those factors make the offender a less appropriate vehicle for general deterrence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a starting point and ultimate sentence within the permissible range, after proper application of a plea discount and balancing of subjective factors, will not be disturbed on appeal merely because a different weight might arguably have been given to particular mitigating features.
  • A finding of special circumstances, reflected in an extended balance of term relative to the non-parole period, is one mechanism by which sentencing courts address the rehabilitative needs of offenders with drug dependency issues upon their return to the community.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193C(1)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18
- Criminal Appeal Act 1912 (NSW)
- Supreme Court Act 1970 (NSW), s 75A

Cases
- Luu v R [2008] NSWCCA 285
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Lawless v The Queen (1979) 142 CLR 659
- Bonett v R [2013] NSWCCA 234
- Zreika v R [2012] NSWCCA 44
- Kanaan v R [2006] NSWCCA 109
- R v Fordham (1997) 98 A Crim R 359
- Turkmani v R [2014] NSWCCA 186
- Vaiusu v R [2017] NSWCCA 71
- Hughes v R [2015] NSWCCA 330
- Khoury v R [2011] NSWCCA 118