Citation: Johnson, Mark Anthony Wilford v R [2017] NSWCCA 43
Court: Court of Criminal Appeal
Date: 22 March 2017
Judges: Hoeben CJ at CL, Latham J, Price J
Background
The appellant pleaded guilty in the District Court to two counts of supplying not less than the large commercial quantity of a prohibited drug (dimethoxyphenethylamine, known as "Nexus"), each carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He also pleaded guilty to possessing an unauthorised home-made pistol, which carried a maximum penalty of 14 years. Additional related offences were taken into account on Form Ones for each principal count.
The sentencing judge imposed an aggregate sentence of 12 years with a non-parole period of seven years and six months. The appellant had no relevant prior criminal history, had pleaded guilty at the first available opportunity, and received a 25 per cent discount for that plea.
The appellant sought leave to appeal against the sentence on three grounds: that the judge failed to give proper weight to his lack of a significant criminal record, that the judge announced indicative sentences before applying the guilty plea discount in contravention of the required methodology, and that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to give proper consideration to the appellant's absence of any significant prior criminal record
- Whether the sentencing judge contravened section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 by announcing indicative sentences before applying the guilty plea discount
- Whether the aggregate sentence of 12 years was manifestly excessive having regard to the appellant's subjective circumstances and role
Decision
Ground One: Criminal record. Latham J rejected the submission that the sentencing judge had ignored the appellant's clean record. A close reading of the remarks on sentence showed the judge acknowledged the prior traffic matters were of no relevance to the serious offending at hand, and expressly noted the appellant had not previously experienced imprisonment. That treatment was consistent with giving the absence of relevant convictions a favourable bearing. Latham J also noted the observation from Kirby J in Weininger v R relied on by the appellant was made in dissent and was not expressed in absolute terms. Leave on this ground was refused.
Ground Two: Plea discount methodology. The Court acknowledged this ground had more substance. The sentencing judge announced the aggregate sentence first and only later stated the indicative sentences and the discount applied, which raised the question of whether the plea discount had been properly applied before the indicative sentences were settled. However, examining the remarks on sentence as a whole, Latham J concluded the indicative sentences had in fact already incorporated the guilty plea discount before being announced. Reading the remarks consistently with that conclusion, no contravention of section 53A was established. Notably, the second supply offence arose directly from the execution of a search following the first, with a significant factual overlap, and the degree of accumulation reflected in the aggregate was modest and appropriate. Leave to argue this ground was granted but the ground was dismissed.
Ground Three: Manifest excess. The Court found no error in the aggregate sentence. The appellant's positive subjective factors, including remorse, rehabilitation steps, compliance with bail conditions, and absence of prior relevant convictions, had all been identified and taken into account by the sentencing judge. Pointing to those factors alone, without demonstrating that the sentence was outside the range of a legitimate sentencing discretion, was insufficient to establish manifest excess under the standard in Hili v The Queen. The standard non-parole periods and maximum penalties operated as legislative guideposts, and the appellant's conduct had escalated beyond personal use to commercial supply connected to the possession of a loaded firearm. Leave was granted but the ground was dismissed.
Orders Made
- Leave to appeal refused on Ground One
- Leave to appeal granted on Grounds Two and Three
- Appeal against sentence dismissed
Key Takeaways
- A sentencing judge's brief observation that minor prior convictions have no bearing on serious offending does not, without more, establish that the judge failed to give credit for the absence of a relevant criminal history. The Court of Criminal Appeal will read remarks on sentence as a whole before accepting such a characterisation.
- Kirby J's statement in Weininger v R that the absence of prior convictions will "usually attract more lenient punishment" carries limited authority, having been made in dissent and in qualified terms. It does not sit easily alongside the instinctive synthesis approach mandated by Markarian v R.
- Where sentencing remarks are ambiguous about the sequencing of a guilty plea discount, the Court will examine the remarks as a whole to determine whether the discount was in fact applied before indicative sentences were settled, rather than treating the form of announcement as conclusive.
- A ground of manifest excess is not established merely by cataloguing favourable subjective features. The appellant must demonstrate the sentence was plainly wrong having regard to all relevant matters, consistent with Hili v The Queen.
- Modest accumulation of sentences across overlapping drug supply offences may be appropriate even where there is significant factual overlap between the principal counts.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including section 53A(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), section 25(2)
- Firearms Act 1996 (NSW), section 7(1)
Cases
- Weininger v R [2003] HCA 14; 212 CLR 629
- Markarian v R [2005] HCA 25; 228 CLR 357
- SHR v R [2014] NSWCCA 94; 241 A Crim R 544
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520