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Court of Criminal Appeal 16 July 2018

Battersby v R

[2018] NSWCCA 141

DrugsFraud & dishonesty
SENTENCING APPEAL LEAVE TO APPEAL RESENTENCING REQUIRED PARITY GROUND NOT PRESENTLY AVAILABLE RESENTENCING

Citation: Battersby v R [2018] NSWCCA 141
Court: Court of Criminal Appeal, NSW
Date: 16 July 2018
Judges: Hoeben CJ at CL, Walton J, Button J

Background

The appellant pleaded guilty in the District Court to three offences: supplying a large commercial quantity of MDMA (23.85 kilograms), supplying a large commercial quantity of cocaine (2.23 kilograms), and knowingly dealing with proceeds of crime ($189,750 in cash). The offences arose from a single operation in November 2015 in which police surveillance captured the appellant transporting a suitcase of drugs to a co-offender's vehicle and subsequently locating a large sum of cash at his home address.

The sentencing judge imposed an aggregate sentence of 15 years and 6 months imprisonment with a non-parole period of 10 years. The indicative sentence for the proceeds of crime offence alone was 5 years.

The appellant sought leave to appeal on four grounds, arguing errors in the maximum penalty applied to the proceeds of crime offence, an erroneous finding about his position in the drug trafficking hierarchy, a parity grievance regarding his co-offender's sentence, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge applied an incorrect maximum penalty for the proceeds of crime offence under s 193B(2) of the Crimes Act 1900 (NSW), and whether that error vitiated the sentencing exercise
  • Whether the sentencing judge erred in finding the appellant was "well above the lowest rung" of the drug trafficking hierarchy
  • Whether the appellant had a justifiable sense of grievance arising from the sentence imposed on his co-offender (the parity ground)
  • Whether the aggregate sentence of 15 years and 6 months was manifestly excessive

Decision

Ground 1 (Maximum Penalty Error): The Court found that the sentencing judge had applied an incorrect maximum penalty to the proceeds of crime offence. The correct maximum was 15 years imprisonment, but the sentencing judge had proceeded on a different, erroneous figure. The Court held that this error was not merely technical. Because the indicative sentence for that offence fed into the aggregate sentence, the error vitiated the exercise of the sentencing discretion and required resentencing.

Ground 2 (Role in Drug Hierarchy): The Court rejected this ground. The appellant argued that, given the limited evidence of his role, the sentencing judge should not have placed him "well above the lowest rung." The Court confirmed that where the full nature of a criminal enterprise is unknown, a sentencing court may draw inferences about an offender's role from the quantity of drugs involved. Given the exceptional quantities here, and the absence of any credible evidence that the appellant was merely a low-level courier, no error was established in the discretionary sentencing judgment.

Ground 3 (Parity): The co-offender had not yet been sentenced at the time of the appeal hearing. The Court found this ground was not presently available, as no meaningful comparison could be drawn without a completed sentence for the co-offender.

Ground 4 (Manifest Excess) and Resentencing: Having found a vitiating error on Ground 1, the Court proceeded to resentence the appellant. In doing so, it took into account strong subjective features, including the absence of prior convictions, genuine remorse, an early guilty plea attracting a 25 percent utilitarian discount, good character, and the additional burden of serving custody without family in Australia. The Court also found special circumstances given the appellant's isolation from family support, justifying a longer than usual parole period. The resulting aggregate sentence was reduced to 12 years with a non-parole period of 8 years.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Aggregate term of imprisonment of 12 years imposed, commencing 16 November 2015 and concluding 15 November 2027, with a non-parole period of 8 years concluding 15 November 2023
  • Indicative sentences: Sequence 1 (MDMA supply): 10 years with a non-parole period of 6 years and 6 months; Sequence 2 (proceeds of crime): 3 years; Sequence 3 (cocaine supply): 5 years with a non-parole period of 3 years

Key Takeaways

  • An error in the maximum penalty applied to one offence can vitiate the entire sentencing exercise, including an aggregate sentence, even where that offence represents only one component of the overall term.
  • Where the full extent of a criminal enterprise is not known, a sentencing court may draw inferences about an offender's position in the drug trafficking hierarchy from the sheer quantity of drugs involved, without the inference amounting to legal error.
  • The onus does not shift to the prosecution to disprove a low-level role merely because direct evidence of the offender's precise function is absent; the quantity itself can be a sufficient basis for an elevated finding.
  • A parity ground based on disparity with a co-offender's sentence is not available in a sentencing appeal where the co-offender has not yet been sentenced.
  • Finding special circumstances to extend the ratio of parole to total sentence was appropriate where the offender would serve custody entirely without family in Australia, making imprisonment more burdensome than usual.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(1), 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- AB v R [2014] NSWCCA 31
- Andreata v R [2015] NSWCCA 239
- Campbell v R [2018] NSWCCA 17
- Chong v R [2017] NSWCCA 185
- Coetzee v R [2007] NSWCCA 12
- Elchiekh v R [2016] NSWCCA 225
- Koh v R [2013] NSWCCA 287
- Lee v R [2016] NSWCCA 146
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- Mooney v R [2016] NSWCCA 303
- Nguyen v R [2014] NSWCCA 16
- Nguyen v R [2017] NSWCCA 39
- R v Lao [2003] NSWCCA 315
- Salafia v R [2015] NSWCCA 141