Citation: Laycock v R [2017] NSWCCA 47
Court: Court of Criminal Appeal, New South Wales
Date: 20 March 2017
Judge(s): Hoeben CJ at CL, Walton J, Latham J
Background
The applicant, a 51-year-old former competitive weightlifter with no prior criminal history, pleaded guilty to three drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a 2014 police investigation into cocaine supply in the Ettalong Beach and Woy Woy areas, which involved an undercover officer making controlled purchases.
The applicant supplied cocaine to an undercover police officer on three separate occasions, receiving between $7,500 and $21,900 per transaction. On the last occasion he also supplied 28.3g of methylamphetamine. When police executed a search warrant at his home on 18 June 2014, they found 757.9g of cannabis, additional drugs, an unregistered shotgun, ammunition, and $4,500 in cash.
The sentencing judge in the Gosford District Court imposed a total effective sentence of 7 years imprisonment, with a non-parole period of 4 years, structured as a combination of accumulated and concurrent terms across the three principal offences. The applicant sought leave to appeal on the basis that two of the individual sentences and the degree of accumulation were each manifestly excessive.
Legal Issues
- Whether the sentence imposed for the supply of 757g of cannabis (sequence 4) was manifestly excessive.
- Whether the sentence imposed for the supply of 28.3g of methylamphetamine (sequence 3) was manifestly excessive.
- Whether the degree of accumulation between all three sentences was excessive, making the overall sentence and non-parole period manifestly excessive.
Decision
Ground 1: Cannabis supply sentence. The Court of Criminal Appeal rejected the argument that the 2-year sentence for supplying 757g of cannabis was manifestly excessive. Walton J considered all circumstances of the offence, including the applicant's role as a principal dealer operating as a business enterprise, the monetary gain involved, and the broader criminal context reflected in the Form 1 matters. The Court noted that the quantity, while less than indictable, exceeded the trafficable threshold and was deemed to be for supply under s 29 of the Act. Sentencing statistics and comparable cases were considered, but the Court affirmed the wide discretion available to sentencing judges and declined to treat numerical equivalence with other cases as determinative.
Ground 2: Methylamphetamine supply sentence. The Court found no error in the 3 years and 6 months sentence for the methylamphetamine supply. The applicant was a principal and dealer, the quantity was significant (28.3g), and the Form 1 included a further 62.86g of methylamphetamine. The Court accepted that retribution, general deterrence, and general denunciation were weighty considerations, and that the sentencing judge had properly taken all relevant factors into account.
Ground 3: Accumulation. The Court held that the degree of accumulation was a matter of judicial discretion and that the sentencing judge exercised it properly. The cannabis possession for supply involved a distinct drug type and constituted a separate episode of criminality from the cocaine and methylamphetamine offences. The Court found that the total sentence appropriately reflected the totality of the applicant's criminality, which included operating drug dealing as a business enterprise and committing admitted offences across multiple drug types.
Orders Made
- Leave to appeal against sentences granted.
- The appeal is dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that all circumstances of an offence are relevant when assessing manifest excess, and that sentencing statistics and comparable cases do not displace the wide discretion available to sentencing judges.
- A deeming provision under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) treating cannabis possession as supply is a relevant factor in assessing objective seriousness, even where no actual supply was proved.
- Where an offender possesses a different type of prohibited drug for supply, that conduct can properly be treated as a separate episode of criminality justifying at least some degree of accumulation of sentences.
- In dismissing the accumulation ground, the Court applied the totality principle and found that the overall sentence reflected the full extent of a drug-dealing enterprise involving cocaine, methylamphetamine, and cannabis across multiple transactions.
- No error was established in the sentencing judge's exercise of discretion merely because the applicant pointed to a lesser maximum penalty for cannabis offences relative to the other counts, where the individual sentence for that count was not itself manifestly excessive.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW)
- Firearms Act 1996 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
Cases:
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Andreata v R [2015] NSWCCA 239
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2
- Bidgood v R [2016] NSWCCA 138
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Franklin v R [2016] NSWCCA 319
- Grills v R [2016] NSWCCA 46
- Haule v R [2015] NSWCCA 253
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Koh v R [2013] NSWCCA 287
- Le v R [2017] NSWCCA 26
- Luu v R [2008] NSWCCA 285
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- McIntosh v R [2015] NSWCCA 184
- Melikian v R [2008] NSWCCA 156
- Ngatamariki v R [2016] NSWCCA 155
- R v Dunn [2004] NSWCCA 346
- R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34