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Court of Criminal Appeal 1 December 2017

Kaddour v R

[2017] NSWCCA 294

Drugs
CRIMINAL LAW APPEAL HELD NO ERROR DEMONSTRATED

Citation: Kaddour v R [2017] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 1 December 2017
Judges: Leeming JA, Fullerton J, Adamson J

Background

The applicant was sentenced in February 2017 by a District Court judge to 6 years and 3 months imprisonment, with a non-parole period of 4 years and 2 months, for conspiracy to manufacture not less than the commercial quantity of a prohibited drug (2,5-Dimethoxyamphetamine). The offence was committed between April and August 2008, at a time when the applicant was serving the balance of an earlier sentence on parole.

The sentencing remarks contained the sentence: "The offence is aggravated as the offender was on parole when he committed it." This sentence appeared immediately after the sentencing judge's discussion of the objective seriousness of the offence, and immediately before her Honour turned to the applicant's personal circumstances.

The applicant sought leave to appeal on the basis that the sentencing judge had wrongly treated the fact of being on parole as an aggravating factor going to the objective seriousness of the offence, rather than as a subjective circumstance. It was common ground between the parties that parole status is a subjective matter and cannot properly be used to elevate objective seriousness.

  • Whether the sentencing judge erred by taking the applicant's status as a parolee into account as an objectively aggravating factor, rather than as a matter relevant to the applicant's personal (subjective) circumstances.
  • How a court of appeal should approach alleged sentencing error where the impugned statement appears in a transitional position within the sentencing remarks, and the error is said to arise from the positioning of the statement rather than from an explicit statement of erroneous reasoning.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error demonstrated in the sentencing remarks.

The central question was the proper characterisation of the disputed sentence in the sentencing remarks. The parties agreed that if the statement formed part of the assessment of objective seriousness, there was appellable error; if it formed part of the consideration of subjective circumstances, there was none. The applicant contended that the sentence's placement at the end of the objective seriousness section created at least sufficient ambiguity to warrant appellate intervention.

The Court rejected the submission that ambiguity alone entitled the applicant to relief. Leeming JA drew a clear distinction between the approach applicable to opaque jury verdicts, where one possible reasoning path may be erroneous, and the approach applicable to reasoned judicial decisions. When a judge gives reasons, those reasons are taken to record the actual steps taken in reaching the result. The question is whether the reasons, read as a whole and in context, disclose the alleged error, not merely whether error is possible.

Adamson J (with whom Fullerton J and Leeming JA agreed) held that a fair reading of the sentencing remarks, in light of the parties' submissions and the way the sentencing hearing had been conducted, showed that the judge had completed her assessment of objective seriousness before reaching the disputed sentence. The submissions of both parties had correctly distinguished between objective and subjective matters and followed the same sequence the sentencing judge adopted. There was no proper basis for concluding that her Honour had failed to observe that distinction. The Court also observed that requiring explicit syntactic demarcation such as headings between objective and subjective matters would be inconsistent with the appellate practice of reading sentencing remarks fairly and as a whole.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established where the sentencing judge's remarks, read fairly and as a whole in the context of the parties' submissions, showed that the reference to parole status appeared after the completion of the objective seriousness assessment and formed part of the subjective circumstances analysis.
  • A mere possibility of error in a judge's written reasons is insufficient to warrant appellate intervention; the appellate court must be satisfied, on a fair reading of the reasons, that the alleged error was actually made.
  • The principle that judicial reasons record the steps actually taken in reaching a result (drawn from Waterways Authority v Fitzgibbon) reinforces the requirement that an applicant demonstrate error, not merely raise a possibility of it.
  • Sentencing remarks are to be read in light of their context, including the submissions advanced at the sentencing hearing, following the approach to judgment interpretation confirmed in Commonwealth v Bank of New South Wales.
  • In dismissing the appeal, the Court distinguished Boney v R and Sharma v R, noting those cases involved genuine elision of the objective/subjective distinction, and emphasised that a broad-brush approach to such questions does a disservice to sentencing judges for whom the distinction is well understood.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 26

Cases
- Boney v R [2015] NSWCCA 291
- C G Maloney Pty Ltd v Noon [2011] NSWCA 397
- Chiro v The Queen [2017] HCA 37
- Commonwealth v Bank of New South Wales (1949) 79 CLR 497
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Osborne v R; R v Osborne [2017] NSWCCA 11
- Sharma v R [2017] NSWCCA 85
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
- Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816