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Court of Criminal Appeal 12 December 2017

Kassoua v R

[2017] NSWCCA 307

Drugs
CRIMINAL LAW SENTENCING APPEAL AGGRAVATING AND MITIGATING FEATURES RELEVANCE OF STANDARD NON PAROLE PERIOD FOR ADMITTED OFFENCE TOP DOWN APPROACH

Citation: Kassoua v R [2017] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 12 December 2017
Judges: Basten JA; Walton J; Price J

Background

The appellant was sentenced in the District Court in October 2015 for knowingly taking part in the supply of a large commercial quantity of methylamphetamine, just under 9kg. A further offence of supplying a commercial quantity (994g) of methylamphetamine was taken into account on a Form 1. The sentencing judge imposed a total sentence of 10 years' imprisonment, with a non-parole period of 7 years and 6 months commencing from the date of arrest in April 2014.

The application for leave to appeal was filed out of time in July 2017, nearly two years after sentencing. The Crown did not oppose the extension of time.

The appellant challenged the sentence on two principal bases: that the sentencing judge had improperly taken financial gain into account as an aggravating factor, and that the judge had mishandled the Form 1 offence in applying the standard non-parole period.

  • Whether the sentencing judge's generic reference to taking aggravating and mitigating factors into account under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) constituted an error.
  • Whether the judge had improperly found the offence was committed for financial gain, given the appellant denied that motivation and no specific payment was proved.
  • Whether the principle in Wat v R and Prculovski v R (that financial gain is not an aggravating factor unless it exceeds what is inherent in the lowest level of the offence type) applied where financial reward is not an element of the offence charged.
  • Whether the sentencing judge erred in applying a "top down" approach when using the standard non-parole period in assessing the seriousness of the Form 1 offence.

Decision

Generic aggravating factors statement: The Court accepted that the sentencing judge's boilerplate reference to having taken s 21A factors into account was inapt and potentially confusing. However, reading the judgment as a whole, it was clear the judge had dealt comprehensively with the relevant issues. The unhelpful passage did not, on a fair reading, indicate that undisclosed aggravating factors had been given significant weight.

Financial gain: The Court found no error in the judge's approach. The appellant had given inconsistent evidence at two sentencing hearings and was found to have lied on oath. Given that the drugs in his possession had a potential market value of approximately $2 million, the surrounding circumstances provided ample grounds to conclude beyond reasonable doubt that the appellant acted for financial gain. The absence of a specific quantified benefit did not prevent that finding.

Scope of the Wat/Prculovski principle: Basten JA examined the origin of the principle that financial gain is not automatically aggravating unless it exceeds what is inherent in the lowest level of the offence. That principle was developed in the context of s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), where financial reward is an element of the offence. The Court held the principle has more limited application where, as here, financial gain is not an element of the offence charged. The more straightforward rule under s 21A is that an aggravating factor cannot be used if it is already an element of the offence; where it is not an element, there is no such constraint.

Form 1 and standard non-parole period: Walton J addressed the appellant's argument that the sentencing judge had improperly adopted a "top down" approach by reference to the standard non-parole period for the Form 1 offence. The Court found that reading the judgment as a whole, the judge had used the standard non-parole period appropriately as a guidepost for assessing objective seriousness. A mere infelicity of language in the sentencing remarks did not establish a methodological error. The Court noted that the Form 1 process requires the offender to admit guilt to the further offence, and the sentencing judge's reference to the standard non-parole period in context was not erroneous.

Orders Made

  • Time for lodging the application for leave to appeal extended to 3 July 2017.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The principle from Prculovski v R and Wat v R, requiring that financial gain exceed the level inherent in the lowest range of the offence before it operates as an aggravating factor, applies specifically where financial reward is an element of the offence. It does not straightforwardly apply to offences under s 25(2) of the Drug Misuse and Trafficking Act, where financial gain is not an element.

  • A sentencing judge's disbelief of an accused's denial of financial motivation, combined with objective evidence of the drugs' market value, can provide a sufficient basis for finding beyond reasonable doubt that the offence was committed for financial gain.

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a court cannot use a circumstance as an aggravating factor if it is already an element of the offence. Outside that constraint, established aggravating circumstances remain available to the sentencing court.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that boilerplate references to s 21A in sentencing remarks will not constitute error if the judgment, read as a whole, demonstrates a careful and comprehensive treatment of the relevant sentencing factors.

  • A "top down" approach error will not be established from isolated passages in a sentencing judgment. The appellate court reads the reasons as a whole, and infelicitous language does not by itself displace an otherwise sound sentencing process.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 32, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 32, 33, 54B; Pt 4, Div 1A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Eckersley v R [2013] NSWCCA 219
- Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
- Fayad v R [2017] NSWCCA 81
- Hudson v R [2016] NSWCCA 278
- MD v Regina [2006] NSWCCA 142
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Prculovski v R [2010] NSWCCA 274
- R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63
- R v Bavadra [2000] NSWCCA 292
- R v King [2009] NSWCCA 117
- R v Mills (2005) 154 A Crim R 40
- R v Walker [2005] NSWCCA 109
- Toole v R [2014] NSWCCA 318; 247 A Crim R 272
- Wat v R [2017] NSWCCA 62