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Court of Criminal Appeal 4 October 2017

Hurmz v R

[2017] NSWCCA 235

Drugs
SENTENCING SUPPLY COMMERCIAL QUANTITY OF COCAINE 2.4KG SUPPLIED SOPHISTICATED DRUG SUPPLY OPERATION USE OF COMPARABLE CASES AND STATISTICS SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Hurmz v R [2017] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 4 October 2017
Judge(s): Macfarlan JA, Beech-Jones J (primary judgment), Wilson J

Background

The appellant was the principal figure in an organised drug supply operation that distributed cocaine to a customer base of over 1,200 people across the Sydney CBD and eastern suburbs over a six-month period ending in May 2014. The operation involved a warehouse used as a safe house to receive, process, package and store cocaine, as well as a network of street-level dealers. A total of 2.4 kilograms of cocaine was supplied, exceeding the large commercial quantity threshold of one kilogram under the Drug Misuse and Trafficking Act 1985.

The appellant pleaded guilty to supplying a commercial quantity of cocaine and to directing the activities of a criminal group. He was sentenced by Payne DCJ in August 2015 to nine years and nine months' imprisonment, with a non-parole period of seven years and three months. A 25 per cent discount was applied for the utilitarian value of the guilty plea.

The appellant also received a separate sentence of six years' imprisonment (with a three-year-and-six-month non-parole period) imposed by Williams DCJ for causing grievous bodily harm with intent. That second sentence was partially cumulative on the drug sentence. The appeal against the second sentence was entirely contingent on success against the first.

  • Whether the sentence of nine years and nine months for supplying a commercial quantity of cocaine was manifestly excessive
  • Whether the sentencing judge erred in her assessment of objective seriousness, the appellant's subjective circumstances, or both
  • Whether, if the drug supply sentence were varied, the commencement date of the grievous bodily harm sentence should be adjusted

Decision

Beech-Jones J (with whom Macfarlan JA and Wilson J agreed) granted leave to appeal on both sentences but dismissed both appeals. The central question was whether the drug supply sentence was so unreasonable or plainly unjust as to constitute manifest excess, applying the established high threshold from House v The King (1936) and subsequent appellate authorities.

The court examined the sentencing judge's finding that the objective criminality of the offence sat "well into the middle range." That assessment was based on the quantity and purity of cocaine involved (including a seized block at 85 per cent purity), the six-month duration of the operation, the degree of organisation, the use of a warehouse, telephone coordination, and the employment of others to distribute the drug. The court found no error in this characterisation.

The appellant's subjective circumstances offered little mitigation. He had a prior custodial sentence for ongoing drug supply, was on bail for the grievous bodily harm charge when he committed the drug offence, and was charged with possession of methylamphetamine during the same period. The sentencing judge expressly declined to find remorse. Beech-Jones J considered these matters collectively and found they justified a sentence toward the higher end of what might ordinarily be expected.

The appellant relied on statistical data and comparable decided cases to suggest the sentence was out of range. The court acknowledged such materials can be useful but cautioned against placing excessive weight on sentencing statistics drawn from a narrow cohort of cocaine supply cases. In particular, cases with higher starting points that resulted in lower final sentences after discounts were not a reliable basis for establishing that this sentence was excessive. No manifest excess was established.

Orders Made

  • Leave to appeal against the sentence imposed by Payne DCJ on 20 August 2015 for supplying a commercial quantity of cocaine: granted
  • Appeal against that sentence: dismissed
  • Leave to appeal against the sentence imposed by Williams DCJ on 27 May 2016 for causing grievous bodily harm with intent: granted
  • Appeal against that sentence: dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of nine years and nine months for supplying 2.4 kilograms of cocaine, within an organised and sustained operation, was not manifestly excessive.
  • The presence of aggravating features including prior drug-related imprisonment, offending while on bail, the scale and sophistication of the supply network, and the absence of genuine remorse collectively supported a sentence at the higher end of the applicable range.
  • Sentencing statistics and comparable cases can assist in identifying range, but the Court of Criminal Appeal noted the limitations of drawing conclusions from a narrow cohort, particularly where differences in discount calculations and starting points make direct comparison unreliable.
  • Where an appeal against a second sentence is advanced solely on the basis that its commencement date must shift if the first sentence is varied, the second appeal necessarily fails if the first appeal is dismissed.
  • New materials tendered at the appeal hearing, including testimonials and a psychologist's report, were received on the standard Betts v The Queen basis, but because no resentencing was required, the materials required no further consideration and the Crown was not required to respond.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a)
- Crimes Act 1900 (NSW), ss 33(1)(b), 93T(4A)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)

Cases
- House v The King (1936) 55 CLR 499
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Betts v The Queen (2016) 258 CLR 420
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Lowndes v The Queen (1999) 195 CLR 665
- Dinsdale v The Queen (2000) 202 CLR 321
- Farkas v R (2014) 243 A Crim R 388
- R v Kazzi [2008] NSWCCA 77
- Minh Tan Pham v R (2009) 193 A Crim R 190
- Ayik v R [2013] NSWCCA 119
- Pham v R [2013] NSWCCA 217
- Deakin v R [2014] NSWCCA 121
- R v Li [2014] NSWCCA 327
- DAB v R; NJB v R [2010] NSWCCA 275
- Prculovski v R [2010] NSWCCA 274
- R v Jihad Mahmud [2010] NSWCCA 219
- Mulato v R [2006] NSWCCA 282
- Coetzee v R [2007] NSWCCA 12
- R v Emanuel [2004] NSWCCA 267