Citation: R v Younan [2018] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 22 August 2018
Judges: Gleeson JA, R A Hulme J, Button J
Background
Police commenced an investigation in March 2016 into drug supply activities on the Central Coast, authorising an undercover officer and telecommunications interception warrants. The respondent, an unemployed man living with his wife and children, was identified through intercepted calls as a central figure in negotiating and arranging drug transactions, using coded language.
He was charged with five offences: two counts of ongoing supply of methylamphetamine, one count of supplying cannabis (1.368 kg), one count of supplying an unregistered prohibited firearm (a small custom-made .22 calibre handgun), and one summary offence of dealing with suspected proceeds of crime. Property worth more than $20,000 was seized from his home on arrest, consisting of items received in exchange for drugs or purchased with drug proceeds.
In the District Court, Acting Judge Grogin imposed an aggregate sentence of 4 years 4 months with a non-parole period of 2 years 10 months. The Crown appealed on the ground that this sentence was manifestly inadequate.
Legal Issues
- Whether s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) requires that the offender actually received a financial or material reward, or whether transactions carried out for the purpose of obtaining such a reward are sufficient.
- Whether the sentencing judge erred in assessing the objective seriousness of the ongoing drug supply offences.
- Whether the aggregate sentence was manifestly inadequate in all the circumstances.
Decision
Construction of s 25A: "financial or material reward"
The Court resolved the question of statutory construction by reference to its own recent decision in Nguyen, The Tao v R [2018] NSWCCA 176. Section 25A requires supply "for financial or material reward," and the extended definition of "supply" in s 3(1) of the Act includes agreeing to supply, offering to supply, and keeping drugs for supply. The preposition "for" indicates purpose, not outcome. Accordingly, transactions carried out with the purpose of obtaining a financial or material reward are captured by s 25A, even where no actual reward was received.
Objective seriousness and manifest inadequacy
The Court declined to make a definitive finding on whether the primary judge erred specifically in assessing objective seriousness, as it was not necessary to determine that question. The Court was satisfied, however, that the overall sentence was manifestly inadequate. The offending involved large volumes of methylamphetamine (approximately 215 grams in one period and 310 grams in another), cannabis supply, the brokering of a readily concealable handgun in criminal circles, and the holding of over $20,000 in drug proceeds as property. That gross criminality could not be adequately reflected in the sentence imposed, and the respondent's subjective circumstances did not warrant such leniency.
Resentencing
On resentencing, the Court maintained the primary judge's findings of remorse, reasonable rehabilitation prospects, and special circumstances. The discount for guilty pleas was preserved at 25% for Count 4 and 20% for the remaining counts. Individual indicative sentences were increased substantially across all counts, and a new aggregate term was imposed.
Orders Made
- Crown appeal against sentence allowed.
- Aggregate sentence imposed in the District Court on 25 May 2018 quashed.
- In lieu, the respondent sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years 6 months.
Key Takeaways
- Under s 25A of the Drug Misuse and Trafficking Act 1985, the offence of ongoing supply does not require that the offender actually received a financial or material reward. Transactions conducted for the purpose of obtaining such a reward are sufficient, given the extended definition of "supply" in s 3(1) of the Act.
- The Court of Criminal Appeal confirmed this construction by reference to its contemporaneous decision in Nguyen, The Tao v R [2018] NSWCCA 176, indicating consistent application of the provision across separately constituted benches.
- A sentence may be found manifestly inadequate even where the sentencing court accepted a positive subjective case, if the objective gravity of the offending is sufficiently serious that those subjective factors cannot justify the resulting leniency.
- Where large-scale, repetitive drug dealing and illicit firearm trafficking are involved, the Court held that general deterrence carries significant weight and must be meaningfully reflected in the total sentence imposed.
- In dismissing any need to resolve the specific error in the objective seriousness assessment, the Court proceeded directly to the manifest inadequacy ground, demonstrating that an appellate court may allow a Crown sentence appeal on that basis without identifying a discrete error at first instance.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Firearms Act 1996 (NSW), s 36
- Crimes Act 1900 (NSW), ss 93T(4A), 193C
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Nguyen, The Tao v R [2018] NSWCCA 176
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Ahmad v R [2012] NSWCCA 273
- El Jamal v R [2017] NSWCCA 243
- Linden v R [2017] NSWCCA 321
- R v Elliott [2018] NSWCCA 69
- R v Wong [2018] NSWCCA 20
- R v Ejefekaire [2016] NSWCCA 308
- R v CTG [2017] NSWCCA 163
- R v El-Ahmad [2015] NSWCCA 65
- R v Cahill [2015] NSWCCA 53
- R v GWM [2012] NSWCCA 240
- Mulato v R [2006] NSWCCA 282
- MRN v R [2006] NSWCCA 155
- Mirza v R [2007] NSWCCA 248
- R v Smiroldo [2000] NSWCCA 120
- R v Smith [2002] NSWCCA 378