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Court of Criminal Appeal 13 June 2018

Elhassan v R

[2018] NSWCCA 118

Drugs
CRIME SENTENCE HOW APT TO MISLEAD

Citation: Elhassan v R [2018] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 13 June 2018
Judge(s): Simpson AJA, Fullerton J, McCallum J (judgment delivered by McCallum J)

Background

The appellant was convicted by jury of supplying not less than the commercial quantity of cocaine (278 grams, against a commercial quantity threshold of 250 grams) under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Surveillance footage recorded him packaging cocaine in a friend's apartment over two days in late June 2014, and police found two heat-sealed bags totalling 278 grams of cocaine (at 87.5% purity) in a car to which he had access.

The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The District Court sentenced the appellant to a total term of 9 years and 6 months, with a non-parole period of 7 years and 1 month, commencing 29 October 2016.

The sentencing judge assessed the offence as close to, but below, mid-range seriousness. In doing so, her Honour treated the fact that the appellant was on parole at the time of the offence as a factor that increased the objective seriousness of the offending. That treatment was the sole ground of appeal.

  • Whether the sentencing judge erred by considering the appellant's parole status as a factor aggravating the objective seriousness of the offence, rather than as a subjective sentencing consideration.
  • Whether, upon a conceded error, the Court of Criminal Appeal was required to re-sentence the appellant by exercising its sentencing discretion afresh.
  • Whether the Crown's formulation of the re-sentencing task, framed as determining whether "a lesser sentence is warranted in law," was an appropriate description of the appellate court's obligation.

Decision

The Crown conceded the sentencing error, and the Court of Criminal Appeal accepted that concession as correct. The distinction matters for proportionality reasons: under the principle established in Veen v The Queen (No 2) (1988) 164 CLR 465, a sentence must be proportionate to the gravity of the crime as measured by its objective circumstances. Parole status is a subjective consideration relevant to the offender's personal circumstances, not a feature that makes the crime itself more serious.

The Court explained the source of the confusion. Although s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) lists committing an offence on conditional liberty as an "aggravating factor," the Court of Criminal Appeal resolved in R v McNaughton (2006) 66 NSWLR 566 that the word "aggravating" in that Act encompasses both objective and subjective considerations. The label does not convert a subjective factor into one bearing on objective seriousness.

On the proper approach to re-sentencing, McCallum J endorsed observations made by Simpson J (as her Honour then was) in Davis v R [2015] NSWCCA 90. The Crown's framing of the task as determining whether "a lesser sentence is warranted in law" was described as potentially misleading. Unless the original sentence sat at the very bottom of the available range, some lesser sentence would by definition be lawfully available. The Court's obligation was to exercise its sentencing discretion independently and afresh, not simply to ask whether the original sentence could be justified.

Re-exercising that discretion, the Court found the objective seriousness of the offence to be somewhat below the mid-range, assessed the appellant's subjective circumstances (including a lengthy drug addiction and prospects of institutionalisation), and concluded that structuring the sentence with a longer balance of term was warranted to allow for extended supervision and community reintegration upon parole. A lesser sentence was found to be both warranted in law and appropriate in the circumstances.

Orders Made

  • The sentence imposed at first instance was quashed.
  • In substitution, the appellant was sentenced to a term of imprisonment with a non-parole period of six years commencing 29 October 2016 and expiring 28 October 2022, and a balance of term of three years expiring 28 October 2025.

Key Takeaways

  • Committing an offence while on parole is a subjective aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), not an objective one. Treating it as increasing the objective seriousness of an offence is a legal error capable of vitiating a sentence.

  • The Court of Criminal Appeal confirmed the distinction, established in R v McNaughton, between factors that aggravate the seriousness of the conduct itself and subjective factors that inform the appropriate sentence for the offender. The two categories call for separate treatment at sentencing.

  • Framing the appellate re-sentencing task as determining whether "a lesser sentence is warranted in law" is apt to mislead. Where the original sentence does not sit at the lowest end of the available range, a lesser sentence is, by operation of Kentwell v The Queen (2014) 252 CLR 601, necessarily "warranted in law"; the real question is whether the appellate court, exercising its discretion independently, considers one should be imposed.

  • In re-sentencing, the Court of Criminal Appeal is not bound to reproduce or closely approximate the original sentence merely because it falls within the available range. The obligation is to exercise the sentencing discretion afresh.

  • Comparative sentencing decisions can assist an appellate court in avoiding haphazardness in sentencing outcomes, but consistency in sentencing requires consistency in the application of principle rather than numerical uniformity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Davis v R [2015] NSWCCA 90
- Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312
- Smith v R [2011] NSWCCA 163
- Elsaj v R [2017] NSWCCA 124
- Trejos v R [2017] NSWCCA 122
- Yeung v R [2018] NSWCCA 52
- Yousif v R [2014] NSWCCA 180
- R v Fidow [2004] NSWCCA 172
- R v Kaliti [2001] NSWCCA 268
- R v Jones (Unreported, NSW Court of Criminal Appeal, 30 June 1994)