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Court of Criminal Appeal 8 September 2017

Kay v R; Ellis v R

[2017] NSWCCA 218

Drugs
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE

Citation: Kay v R; Ellis v R [2017] NSWCCA 218
Court: Court of Criminal Appeal (NSW)
Date: 8 September 2017
Judges: Hoeben CJ at CL (with Davies J and Bellew J agreeing)

Background

Two applicants each pleaded guilty in the Local Court to knowingly taking part in the supply of not less than the commercial quantity of cannabis leaf, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Police had executed a search warrant at a rural property and found the applicants among a group of seven men engaged in trimming, packaging, and Cryovac-sealing cannabis for distribution. Both were sentenced together in the District Court at Lismore in December 2016, with a 25% reduction applied to each sentence for the utilitarian value of their early guilty pleas.

After sentence was pronounced, it emerged that the Agreed Facts placed before the sentencing judge overstated the quantity of cannabis the subject of the charges by approximately 25.35 kilograms. The correct net weight of cannabis located in the relevant parts of the property was 42.442 kilograms, not 67.79 kilograms as stated. This error occurred without any fault on the part of the sentencing judge.

Each applicant sought leave to appeal their sentence on multiple grounds, including the factual error as to weight, an alleged mistake about where the quantity fell in the sentencing range, an error concerning the market value of the cannabis, and a claim of unjustified sentencing disparity between the two co-offenders.

  • Whether the erroneous Agreed Facts as to the weight of cannabis required the sentences to be set aside and the applicants re-sentenced.
  • Whether the sentencing judge erred in characterising the quantity as falling in the "upper range for quantity alone."
  • Whether the sentencing judge was significantly mistaken as to the market value of the cannabis.
  • Whether the sentences were manifestly excessive given the corrected facts.
  • Whether the identical head sentences imposed on both applicants produced a justifiable sense of grievance for one, given differences in their subjective circumstances.

Decision

The Court of Criminal Appeal accepted that the overstatement of cannabis weight by over 25 kilograms constituted a miscarriage of the sentencing proceedings. Because the sentencing judge had proceeded on incorrect agreed facts through no fault of her own, the Court was required to re-exercise the sentencing discretion afresh. Using the correct quantity of 42.442 kilograms, the offence still clearly fell within the commercial quantity range (the commercial quantity being 25 kilograms and the large commercial quantity 100 kilograms), but the characterisation of it as falling in the "upper range for quantity alone" could not be sustained on the correct figures.

The Court found that the two applicants played effectively the same role in the offending. However, it identified a significant difference in their subjective circumstances. One applicant (Ellis) had a more extensive criminal history and a more modest subjective case overall. The other (Kay) presented a stronger subjective case, including a limited criminal history, community support, and genuine remorse. The Court found it necessary to adjust the sentences to reflect that difference.

In respect of Ellis, the Court concluded that, even accounting for the reduced quantity, an independent exercise of the sentencing discretion would have produced a sentence equal to or greater than that already imposed. Accordingly, Ellis's appeal was dismissed, with no lesser sentence warranted in law. In respect of Kay, the Court reduced his balance of term by four months to better reflect the difference between his subjective case and that of his co-offender, while maintaining the same non-parole period.

The Court also addressed the question of whether a non-custodial sentence, such as an Intensive Correction Order, could have been appropriate. It held that once substantial drug trafficking is established, compelling circumstances would need to be shown to justify a non-custodial outcome, though such circumstances need not rise to the level of being "exceptional."

Orders Made

Ellis v R:
- Leave to appeal against sentence granted.
- Appeal dismissed.

Kay v R:
- Leave to appeal against sentence granted.
- Sentence imposed by Wells SC DCJ on 13 December 2016 quashed.
- In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 2 months, expiring 28 September 2019.

Key Takeaways

  • Where agreed facts placed before a sentencing court contain a material error, sentencing proceedings may miscarry even where the sentencing judge bears no fault, requiring the appellate court to re-exercise the sentencing discretion from scratch.
  • A finding that an offence falls in the "upper range for quantity alone" must be grounded in the correct factual basis; the Court of Criminal Appeal rejected that characterisation once the true weight of 42.442 kilograms was applied, given the large commercial quantity threshold sat at 100 kilograms.
  • Co-offenders playing equivalent roles in drug trafficking may still attract materially different sentences where their subjective circumstances differ significantly, and identical head sentences in such cases can produce a justifiable sense of grievance.
  • In dismissing Ellis's appeal, the Court confirmed that no lesser sentence was warranted in law despite the factual error, because an independent assessment of his objective and subjective circumstances supported the original sentence.
  • Under the Court's reasoning, once substantial drug trafficking is established, a non-custodial sentencing option requires compelling subjective circumstances to be advanced, though the threshold is not as high as requiring "exceptional" circumstances.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lehn v R [2016] NSWCCA 255; 93 NSWLR 205
- R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)
- Robertson v R [2017] NSWCCA 205
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2