Citation: Matthews v R; New v R [2018] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 27 August 2018
Judge(s): Macfarlan JA, Gleeson JA, Fagan J
Background
Two co-offenders, a mother aged 43 and her son aged 22, were sentenced in the District Court at Lismore after each pleading guilty to one count of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Their offending was interrelated and centred on a series of purchases from a Queensland supplier between May and September 2016. The son's father, who had been in a relationship with the mother until around 2003, was the principal organiser of the supply network and was charged on the same indictment.
The son was involved in 12 separate purchases totalling 176.75 grams of methylamphetamine, well above the indictable quantity of 5 grams but below the commercial quantity of 250 grams. The mother was involved in 11 purchases totalling 141.4 grams, with six occasions overlapping with those of her son. Both transported the drug across the Queensland border into the Kyogle area and supplied part of it to associates, largely to fund their own significant addictions. The mother was also found cultivating cannabis plants at her home, giving rise to additional charges dealt with on a Form 1 (a procedural document listing related offences taken into account during sentencing without further conviction).
The son was sentenced to 3 years imprisonment with a non-parole period of 18 months. The mother received the same head sentence of 3 years but with a longer non-parole period of 2 years. Both sought leave to appeal against the severity of their sentences.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of each applicant's offending
- Whether the sentencing judge's description of the applicants as "facilitators of supply" above "street level users/dealers" was a material misdescription
- Whether any misdescription of the period of offending constituted appealable error
- Whether fresh evidence of hardship suffered by the mother's children, consequent on her incarceration, warranted a reduction in her sentence
- Whether the son had a justifiable sense of grievance arising from receiving the same head sentence as his mother, given his lesser moral culpability and less serious Form 1 offences (the parity ground)
Decision
The Court of Criminal Appeal (Fagan J, with Macfarlan JA and Gleeson JA agreeing) rejected all grounds of appeal for both applicants and dismissed the appeals, while granting leave to appeal.
On objective seriousness, the court found no error in the sentencing judge's assessment. The total quantities involved, the repeated interstate purchasing trips, the coordination of purchases and prices, and the organised nature of the supply network all supported the conclusion that the offending was of considerable seriousness. The court found that the characterisation of the applicants as "facilitators of supply" above street-level dealers was an accurate description of their roles, given their active participation in procurement, transport and resale, even if the principal organiser was the father.
The fresh evidence ground raised by the mother concerned the impact of her imprisonment on her two children, who were aged 16 and 18 at the time of the appeal. The court found the evidence did not establish the kind of exceptional hardship that could have materially altered the sentencing exercise. The children were not young, were not wholly dependent on the mother, and other support arrangements were in place or likely to be established.
On parity, the court found that the son's lesser moral culpability and negligible Form 1 offence, when weighed against the mother's own strong mitigating factors (including the influence of an older partner since her youth and her efforts at rehabilitation), did not produce a result so manifestly unjust as to give rise to a justifiable sense of grievance. The disparity in non-parole periods (18 months for the son versus 24 months for the mother) already reflected the sentencing judge's recognition of their different circumstances.
Orders Made
For each applicant:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- No error was established in characterising participants who contributed financially to purchases, travelled interstate to collect drugs, and coordinated resale as occupying a position in the supply chain above street-level dealers, even where a more senior organiser was also charged.
- Fresh evidence of hardship to a sentenced person's children will not automatically reduce a sentence. The Court of Criminal Appeal confirmed the evidence must demonstrate exceptional circumstances, and where children are not young and alternative support is available, that threshold is unlikely to be met.
- In dismissing the parity ground, the court confirmed that parity does not require identical sentences where co-offenders have different subjective circumstances, provided the sentencing court has genuinely addressed those differences. A disparity in non-parole periods can itself reflect the required distinction.
- A Form 1 offence need not mechanically increase a head sentence when the principal count already attracts a significant term. The sentencing judge had a discretion to treat the cannabis cultivation charges as not materially altering the sentence for the more serious methylamphetamine supply offence.
- Mitigating factors such as relative youth, exposure to drug use during childhood, and the corrupting influence of older associates can reduce moral culpability, but they must be weighed against the equivalent subjective considerations available to a co-offender.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases:
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- R v Linden [2017] NSWCCA 321
- R v Macdonald; R v Maitland [2017] NSWSC 638
- R v Shortland [2018] NSWCCA 34
- R v Tuhakaraina [2016] NSWCCA 81
- R v X [2004] NSWCCA 93
- Reg v Wirth (1976) 14 SASR 291