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Court of Criminal Appeal 13 September 2017

Cunningham v Regina

[2017] NSWCCA 222

Drugs
CRIME APPEALS SENTENCING STRONG SUBJECTIVE CASE CUSTODIAL SENTENCE CRIME APPEALS

Citation: Cunningham v Regina [2017] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 13 September 2017
Judge(s): Bathurst CJ, Hoeben CJ at CL, McCallum J (reasons by McCallum J)

Background

The appellant was a 19-year-old man who pleaded guilty to one count of supplying a prohibited drug (15.86 grams of psilocin mushrooms, also known as "magic mushrooms") contrary to the Drug Misuse and Trafficking Act 1985 (NSW). Two further charges involving a small quantity of cannabis and a bottle of morphine hydrochloride were taken into account on a Form 1 schedule. The maximum penalty for the supply offence was 15 years' imprisonment.

Police encountered the appellant sitting shirtless in his car near the Gap at Vaucluse at 4:20am, a location known as a site attended by people at risk of self-harm. The drugs were found in the glove box along with a set of scales, which the appellant attributed to an unnamed friend whom he said was selling the mushrooms.

The sentencing proceedings were protracted. The appellant offered multiple inconsistent accounts of why he had the drugs. The District Court adjourned sentencing for eight months to monitor the appellant's rehabilitation, but he only partially complied with the fortnightly urinalysis requirement. The judge ultimately sentenced him to 12 months' imprisonment to be served by way of an intensive correction order (ICO), having rejected a suspended sentence as insufficient. The appellant sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to impose a non-custodial sentence, given the appellant's strong subjective circumstances
  • Whether the sentence of 12 months' imprisonment served by way of an ICO was manifestly excessive

Decision

Ground 1: Failure to impose a non-custodial sentence

Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a sentencing court to consider all possible alternatives before imposing imprisonment. The sentencing judge expressly turned his mind to this question and concluded that a suspended sentence under s 12 was insufficient to reflect the objective gravity of the offending. McCallum J found no error in that conclusion. Her Honour noted that finding error in the failure to impose a non-custodial sentence for a generic supply offence carrying a maximum of 15 years, in circumstances where the appellant's favourable explanation had been rejected, would have been a curious outcome.

Ground 2: Manifest excess

The manifest excess ground was largely contingent on the arguments supporting Ground 1, which had already been rejected. Separately, the appellant contended that even if imprisonment was warranted, 12 months by ICO was excessive given his progress since arrest. The Court of Criminal Appeal reiterated the established principle that an appellate court does not intervene merely because a more lenient sentence might have been imposed, or even because the appellate judges themselves would have imposed a lesser term. The onus is on an appellant to demonstrate that the sentence was outside the permissible exercise of the sentencing judge's discretion. On the facts, the Court was not persuaded that fixing 12 months was beyond that range, even if a shorter term was also open.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must consider all alternatives to imprisonment before imposing a custodial sentence, but the sentencing judge's express consideration of, and rejection of, a suspended sentence satisfied that obligation on the facts of this case.
  • A strong subjective case, including youth, mental illness (bipolar disorder diagnosed during proceedings), the death of a parent, and evidence of rehabilitation, does not automatically preclude a custodial sentence for a supply offence carrying a maximum of 15 years.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that the relevant test is not whether a more lenient sentence was available, but whether the sentence imposed fell outside the permissible exercise of the sentencing judge's discretion.
  • Partial compliance with conditions set during a sentencing adjournment under s 11 of the Crimes (Sentencing Procedure) Act, including inconsistent adherence to a fortnightly urinalysis requirement, was a relevant factor in the sentencing judge's assessment.
  • No special or exceptional circumstances need to be demonstrated before an intensive correction order rather than a suspended sentence is imposed; the two are simply different forms of custodial sentence available within the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 11, 12
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Mental Health Act 2007 (NSW)

Cases:
No specific cases were cited in the portions of the judgment provided.