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Court of Criminal Appeal 25 July 2018

Kandemir v R

[2018] NSWCCA 154

Drugs
CRIME SENTENCE APPEAL ACCUMULATION PAROLE PERIOD OF THE SENTENCES WHETHER THE APPLICANT SHOULD BE RE SENTENCED

Citation: Kandemir v R [2018] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 25 July 2018
Judges: Beazley P, Price J, R A Hulme J

Background

The applicant pleaded guilty in the District Court at Parramatta to two counts of knowingly taking part in the supply of a prohibited drug in not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The prohibited drugs were 4.96 kilograms of methylamphetamine and 8.66 kilograms of MDMA. The maximum penalty for each offence was 20 years imprisonment and a $385,000 fine, with a standard non-parole period of 10 years.

The applicant's role was to travel from Sydney to Perth using a false identity to collect drug packages sent by co-offenders. He was arrested in Perth on 11 September 2015 while awaiting delivery of the packages, which had been intercepted by police. The sentencing judge imposed two partially accumulated sentences producing an overall effective term of 5 years 6 months with a non-parole period of 3 years 10 months.

The applicant sought leave to appeal on two grounds: that the sentencing judge had applied an incorrect maximum penalty, and that the judge had erred in the degree of accumulation of the non-parole periods.

  • Whether the sentencing judge erred by sentencing against an incorrect maximum penalty
  • Whether the sentencing judge erred in the degree of accumulation of the non-parole periods
  • Whether, if re-sentencing was warranted, the utilitarian discount for guilty pleas should exceed 15%
  • Whether general deterrence should have been moderated due to the applicant's mental health conditions
  • Whether parity with co-offenders required a different sentence
  • Whether special circumstances existed to justify a greater departure from the standard non-parole period

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that no different sentence should have been imposed.

On the first ground, the Court accepted that the sentencing judge had referred in passing to the maximum penalty applicable to the large commercial quantity offences (those faced by co-offender Peter Murray) rather than the commercial quantity offences to which the applicant had pleaded guilty. However, the Court found this reference did not infect the sentencing exercise. The applicable maximum penalty of 20 years and the standard non-parole period of 10 years had been correctly identified and applied throughout the balance of the remarks on sentence.

On the accumulation ground, the Court found no error in the judge's decision to accumulate the non-parole periods by one year. The Court considered the totality principle, which requires a sentencing court to ensure the combined effect of multiple sentences is not disproportionate to the overall criminality involved, and concluded that the one-year overlap appropriately reflected the applicant's overall culpability. The Court also found that the 15% utilitarian discount for the guilty pleas was appropriate, that mental health conditions did not warrant a reduction in general deterrence on the facts, and that parity with the co-offenders did not compel a lower sentence given the differences in culpability. The Court confirmed that the non-parole period of 3 years 10 months represented the minimum time that should be served to reflect the seriousness of the offending.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • A passing reference to an incorrect maximum penalty in remarks on sentence does not necessarily constitute a sentencing error if the correct maximum was identified and applied in the substantive sentencing exercise.
  • The Court of Criminal Appeal confirmed that the totality principle requires a court to assess whether the combined effect of partially accumulated sentences is proportionate to the overall criminality, and found one year of accumulation was appropriate across two commercial quantity drug supply offences.
  • In dismissing the appeal, the Court affirmed that a 15% utilitarian discount for guilty pleas fell within the established range and was not required to be increased simply because the applicant raised mental health conditions.
  • Parity arguments require a meaningful comparison of the roles and culpability of co-offenders. The applicant's lower sentence compared to co-offenders who faced large commercial quantity charges (carrying a maximum of life imprisonment) reflected the different statutory framework and greater criminality of those offenders.
  • The ultimate constraint on any finding of special circumstances is that the non-parole period must still appropriately reflect the criminality of the offending.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Murray v R [2017] NSWCCA 262
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Jaafar v R [2017] NSWCCA 223
- Cayhadi v R (2007) 168 A Crim R 41
- Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 152
- R v AB [2011] NSWCCA 229
- Bell v R; Jelisavac v R [2009] NSWCCA 206
- R v Kerr [2003] NSWCCA 234
- Andreata v R [2015] NSWCCA 239
- Aslan v R [2014] NSWCCA 114
- Collier v R [2012] NSWCCA 213