Citation: Huang v R [2017] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 14 December 2017
Judges: Hoeben CJ at CL, Davies J, Bellew J
Background
The appellant pleaded guilty in the Local Court to supplying not less than a large commercial quantity of ephedrine, specifically 14.935 kilograms, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence was committed as part of a joint criminal enterprise involving three co-offenders and was directed at an undercover police officer who had agreed to purchase the drugs for approximately $1.2 million.
The appellant's role involved negotiating the transaction across three meetings, coordinating the co-offenders, and facilitating the physical handover. He was not the principal organiser of the broader drug supply network but acted as a leader and organiser in dealings with the undercover officer.
On 25 August 2016, Judge Lakatos SC sentenced the appellant in the District Court to ten years' imprisonment, with a non-parole period of seven years. The appellant sought leave to appeal, contending that the sentencing judge had wrongly applied multiple statutory aggravating factors and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in finding the offence was aggravated under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that it involved a series of criminal acts
- Whether the sentencing judge erred in finding aggravation under s 21A(2)(n) on the basis that the offence was part of planned or organised criminal activity
- Whether the sentencing judge erred in finding aggravation under s 21A(2)(o) on the basis that the offence was committed for financial gain
- Whether the sentence of ten years' imprisonment was manifestly excessive
Decision
The Court of Criminal Appeal accepted that errors had been made in the application of certain aggravating factors. The finding that the offence involved a "series of criminal acts" within s 21A(2)(m) was treated as questionable given that the three meetings were preparatory steps toward a single supply transaction rather than a series of discrete criminal acts. The Court also found that financial gain under s 21A(2)(o) was inherent in a drug supply offence of this nature and could not properly be applied as a separate aggravating factor.
On the question of planning under s 21A(2)(n), the Court took a more nuanced approach. While some degree of planning is inherent in any supply offence, the level of planning present here, including the use of a rented vehicle, the coordination of multiple co-offenders, and the use of a safe-house associated with a prior importation, was found to be sufficiently significant to constitute a proper aggravating factor beyond what is inherent in the offence.
In reassessing the objective seriousness, the Court concluded that the quantity of drugs, approximately three times the large commercial threshold, placed the matter in a low category of seriousness when compared with cases involving larger quantities or purer substances. Together with the planning aggravating factor and relevant subjective matters, including early plea, remorse, and a low to medium risk of reoffending, the Court assessed the objective seriousness as on the low side of the mid-range.
Applying a 25 per cent discount for the early plea and making allowance for special circumstances arising from the appellant's drug addiction, the Court substituted a sentence of seven years and six months' imprisonment, with a non-parole period of five years and three months.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed by Judge Lakatos SC on 25 August 2016 quashed
- In lieu thereof, the appellant sentenced to imprisonment for 7 years and 6 months commencing 20 May 2014 and expiring 19 November 2021, with a non-parole period of 5 years and 3 months expiring 19 August 2019
Key Takeaways
- Financial gain under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 cannot operate as an aggravating factor in a drug supply offence where profit motive is inherent in the offence itself rather than representing something additional or exceptional.
- Planning under s 21A(2)(n) may legitimately aggravate a drug supply offence, but only where the degree of planning goes materially beyond what is inherent in the offence charged. The Court of Criminal Appeal found that coordinating multiple offenders, using a rented vehicle, and employing a safe-house crossed that threshold here.
- In assessing objective seriousness for large commercial drug supply, both the quantity relative to the threshold and the offender's role within the criminal enterprise are significant considerations.
- A 25 per cent discount for an early guilty plea applies where the plea was entered at the Local Court stage, and allowance for special circumstances is available where rehabilitation needs, such as addressing drug addiction, justify a longer balance of term.
- Comparative sentencing cases retain some utility in identifying an appropriate sentence range, but the Court of Criminal Appeal noted the High Court's recent caution in Director of Public Prosecutions v Dalgliesh [2017] HCA 41 about placing undue reliance on them.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), (n), (o)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases
- Director of Public Prosecutions v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37
- Elyard v R [2006] NSWCCA 43
- Fahs v Regina [2007] NSWCCA 26
- Farkas v R [2014] NSWCCA 141; 243 A Crim R 388
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Prculovski v R [2010] NSWCCA 274
- R v Mills [2005] NSWCCA 175; 154 A Crim R 40
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Walker [2005] NSWCCA 109
- R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218
- Vaiusu v R [2017] NSWCCA 71
- Wat v R [2017] NSWCCA 62