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Court of Criminal Appeal 5 October 2018

Healey v R

[2018] NSWCCA 214

Drugs
CRIMINAL LAW SENTENCE APPEAL AGGREGATE SENTENCE FORM 1 OFFENCES PLEAS OF GUILTY INDICATIVE SENTENCES

Citation: Healey v R [2018] NSWCCA 214
Court: Court of Criminal Appeal, NSW
Date: 5 October 2018
Judge(s): Macfarlan JA, Johnson J, Campbell J (Campbell J delivered the leading judgment)

Background

The applicant pleaded guilty in the District Court at Penrith to four serious drug supply offences committed between December 2014 and February 2015. The offences involved supplying large or commercial quantities of cocaine, MDMA, MDA, and methylamphetamine. The sentencing judge imposed an aggregate term of 10 years imprisonment, with a non-parole period of 7 years.

The applicant had been detected incidentally during an undercover police investigation into a co-offender, Rowsell. He described his own role as that of a middleman, supplying drugs on behalf of the owner to an undercover operative, reporting back to the owner and acting only within the scope of what he was authorised to do. Two other co-offenders, Rowsell and Hardman, were sentenced separately and received substantially lighter sentences.

On appeal to the Court of Criminal Appeal, the applicant challenged two aspects of his sentence: the fairness of his indicative sentence for the MDA offence relative to his co-offenders (a parity argument), and an alleged factual error by the sentencing judge in assessing the quantity of methylamphetamine involved in a separate count.

  • Whether the applicant had a justifiable sense of grievance arising from the indicative sentence for the commercial supply of MDA, compared with the indicative sentences given to co-offenders Rowsell and Hardman for their involvement in the same offence.
  • Whether the sentencing judge made an error in assessing objective gravity by describing the quantity of methylamphetamine (715.7 grams) as "almost six times the commercial quantity" when the applicable commercial quantity threshold had been lowered by subsequent regulation, meaning the quantity was in fact less than three times the commercial quantity.

Decision

Ground 1: Parity
The Court accepted that the sentencing judge had erred in failing to recognise a justifiable sense of grievance when imposing the indicative sentence for the MDA offence. Rowsell received an indicative sentence of 4 years (non-parole period 2 years) for his involvement, while the applicant received an indicative sentence of 6 years 6 months (non-parole period 3 years 6 months). Despite the applicant having a more central role, the Court found the disparity was not adequately justified, particularly given that Rowsell's sentencing judge had already assessed the applicant as higher in the drug hierarchy without the benefit of complete information about Rowsell's separate methylamphetamine offending.

Ground 2: Objective Gravity
The Court accepted that the sentencing judge had made a factual error. The Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 had lowered the commercial quantity threshold for methylamphetamine from 250 grams to 250 grams (already in force at sentencing), meaning 715.7 grams was less than three times the commercial quantity, not "almost six times" as stated by the judge. This was an identifiable error warranting the Court to re-exercise the sentencing discretion.

Re-exercise of Discretion
Despite finding errors on both grounds, the Court concluded that the aggregate sentence of 10 years with a 7-year non-parole period remained appropriate when all offending was viewed together. The Court noted the applicant's genuine mitigating factors, including his strong rehabilitation prospects, good employment history, family support, and remorse. However, these did not warrant a reduction in the overall sentence. No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Errors in individual indicative sentences under an aggregate sentencing structure do not automatically produce a different outcome on appeal: the Court of Criminal Appeal will re-exercise the sentencing discretion afresh and may still conclude the aggregate sentence is appropriate.
  • A justifiable sense of grievance for parity purposes can arise even where a co-offender had a lesser role, if the disparity between sentences is not adequately explained by the differences in culpability.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicative sentences are not standalone sentences but inform the aggregate; errors in those indicators may still be corrected on appeal if they disclose an error in the exercise of the sentencing discretion.
  • Sentencing judges must apply the commercial quantity thresholds as they stood at the time of sentencing, including any amendments made by regulation before the sentencing date. Applying an outdated threshold can constitute a material error affecting the assessment of objective gravity.
  • In dismissing the appeal, the Court reaffirmed that suppliers of large commercial quantities of prohibited drugs must receive significant sentences for the purposes of both personal and general deterrence, regardless of mitigating personal circumstances.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24B, 25
- Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)

Cases
- Andreata v R [2015] NSWCCA 239
- Clarke v The Queen [2013] NSWCCA 260
- Fato v R [2017] NSWCCA 190
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hiron v R [2018] NSWCCA 10
- House v The King (1936) 55 CLR 499
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601
- Lehn v R (2016) 93 NSWLR 205
- Lowe v The Queen (1984) 154 CLR 606
- Mansaray v R [2018] NSWCCA 16
- O'Grady v The Queen (2014) 252 CLR 621
- Pearce v The Queen (1998) 194 CLR 610
- R v MacDonnell [2002] NSWCCA 34
- Saraya v R [2015] NSWCCA 63
- Wan v The Queen [2017] NSWCCA 261
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584