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Court of Criminal Appeal 15 November 2017

Murray v R

[2017] NSWCCA 262

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER LESSER SENTENCE WARRANTED

Citation: Murray v R [2017] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 15 November 2017
Judges: Ward CJ in Eq, Price J, Beech-Jones J

Background

The applicant pleaded guilty in the Local Court to two counts of supplying not less than the large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The drugs involved were 4.96 kilograms of methylamphetamine and 8.66 kilograms of MDMA, seized after a logistics company employee opened suspicious parcels intended for transit from Sydney to Perth. The applicant's DNA was found on clothing inside one of the parcels, and intercepted phone calls and admissions to police connected him to the operation. He admitted to expecting $5,000 for moving the drugs and estimated he had earned $30,000 to $40,000 from similar prior activities.

At sentencing in the District Court at Parramatta, the judge imposed 11 years for count 1 (non-parole period of 8 years) and 13 years for count 2 (non-parole period of 9 years), partially accumulated by one year, producing an effective sentence of 14 years with a 10-year non-parole period. The applicant sought leave to appeal that outcome.

  • Whether the sentencing judge failed to take into account, or failed to explain how he had taken into account, the applicant's early pleas of guilty
  • Whether the judge erred by postulating a theoretical "street level purity" figure for methylamphetamine without an evidential basis, and without affording the parties an opportunity to address that finding
  • Whether there was a denial of procedural fairness arising from the purity finding
  • Whether the judge incorrectly characterised the objective seriousness of the offences as falling within the mid-range
  • Whether the judge failed to give proper effect to his finding of special circumstances in structuring the non-parole period
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal upheld several of the grounds of appeal. On ground 1, the Court found that the sentencing judge had failed to give adequate reasons explaining how the early guilty pleas had been taken into account. This was a material error given that early pleas represent a significant mitigating factor under established sentencing principles.

On ground 2, the Court found that the judge erred by postulating a theoretical street-level purity figure for methylamphetamine that had no evidential foundation in the agreed facts or any expert evidence. The Court further found that in doing so, the judge denied the parties procedural fairness by not giving them an opportunity to address that reasoning before it was incorporated into the sentencing exercise. The purity of the methylamphetamine (tested at 79 per cent for one sample) was a relevant consideration, but the judge's additional theoretical extrapolation went beyond the evidence.

The Court also found that the judge had not given proper effect to the finding of special circumstances, producing a ratio between the non-parole period and the head sentence that was inadequate in light of that finding. Together, these errors justified intervention and the resentencing of the applicant by the Court itself. The Court determined an undiscounted starting point of 14 years for each count, then applied a 25 per cent discount for the early guilty pleas, arriving at a head sentence of 10 years and 6 months on each count. Partial accumulation of one year was maintained, and special circumstances were found to apply to the resulting structure.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by McLennan SC DCJ for counts 1 and 2 quashed
  • Count 1: 10 years 6 months imprisonment, with a non-parole period of 7 years commencing 11 September 2015 and expiring 10 September 2022, balance of term of 3 years 6 months expiring 10 March 2026
  • Count 2: 10 years 6 months imprisonment, with a non-parole period of 7 years commencing 11 September 2016 and expiring 10 September 2023, balance of term of 3 years 6 months expiring 10 March 2027
  • Overall effective sentence: 11 years 6 months imprisonment with a non-parole period of 8 years commencing 11 September 2015 and expiring 10 September 2023, with a balance of term expiring 10 March 2027
  • Earliest parole eligibility date: 10 September 2023

Key Takeaways

  • A sentencing judge must not only take into account an early guilty plea but must provide adequate reasons explaining how that discount has been applied; failure to do so constitutes a material error warranting appellate intervention.
  • Where a sentencing judge relies on a purity figure or other factual matter not established by the evidence before the court, and does so without giving the parties an opportunity to address it, the resulting sentence may be set aside for denial of procedural fairness.
  • The Court of Criminal Appeal confirmed the importance of general deterrence in sentencing for large commercial drug supply offences, citing the applicant's involvement in a substantial trans-Australian drug distribution enterprise.
  • A 25 per cent guilty plea discount was applied on resentencing, reflecting the early timing of the pleas in the Local Court proceedings.
  • Where special circumstances are found, the sentencing structure must genuinely reflect that finding in the ratio between the non-parole period and the head sentence; a nominal acknowledgment without structural consequence does not suffice.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(3)(i)

Cases:
- Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13
- Chong v R [2017] NSWCCA 185
- Jaafar v R [2017] NSWCCA 223
- Jiang v R [2010] NSWCCA 277
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Koh v R [2013] NSWCCA 287
- Lee, Matthew v R [2016] NSWCCA 146
- Munday v R [2017] NSWCCA 95
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Cramp [2004] NSWCCA 264
- R v Olbrich [2000] NSWCCA 389; (2000) 117 A Crim R 326
- R v Reilly; R v Smith [2012] NSWCCA 166
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Wendy Olive Lawrence [2005] NSWCCA 91
- Ramos v R [2015] NSWCCA 313
- Scott v R [2010] NSWCCA 103
- Stoeski v R [2008] NSWCCA 230
- Woodward v R [2014] NSWCCA 205