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14
Court of Criminal Appeal 17 October 2018

Greentree v R

[2018] NSWCCA 227

DrugsFirearms & weapons
SENTENCING FINDING OF OBJECTIVE SERIOUSNESS RE‑SENTENCE RELEVANCE AND WEIGHT OF THAT EVIDENCE APPLICANT RE‑SENTENCED.

Citation: Greentree v R [2018] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 17 October 2018
Judges: Hoeben CJ at CL, McCallum J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to three offences: knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine (five kilograms) between May 2014 and 21 May 2014; possessing a prohibited firearm (a .22 calibre rifle with a silencer) on 20 May 2014; and acting as an accessory after the fact to the manufacture of a large commercial quantity of methylamphetamine on 13 January 2015. Three further offences were taken into account on a Form 1, including possession of an unregistered firearm and dealing with the proceeds of crime.

The conduct centred on a rural property at Wiseman's Ferry, where surveillance footage and forensic evidence linked the applicant to a clandestine methylamphetamine laboratory. Police found precursor chemicals and equipment sufficient to manufacture over five kilograms of methylamphetamine, along with two firearms. The applicant's DNA was found inside gloves at the scene. The third count arose after his arrest, when police stopped a vehicle he was driving and found drums containing liquid pseudoephedrine waste, plus $1,000 cash he admitted was payment for disposing of the waste.

The District Court imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of seven years. The applicant sought leave to appeal, contending the sentencing judge had made several errors in assessing the seriousness of the primary drug offence and in applying the provisions relating to assistance to authorities.

  • Whether the sentencing judge erred in assessing the objective seriousness of the large commercial quantity drug manufacture offence, including by applying the wrong quantity threshold for the "commercial quantity" of methylamphetamine at the time of the offence
  • Whether the sentencing judge wrongly assumed the large commercial quantity threshold was 500 grams when, at the time of the offence (May 2014), it was in fact one kilogram (it was subsequently reduced to 500 grams by amendment in 2015)
  • Whether the sentencing judge failed to properly address the factors listed in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 concerning assistance provided to authorities
  • Whether the Court of Criminal Appeal could receive further evidence on resentence concerning the applicant's family circumstances, and what weight that evidence should attract

Decision

The Court of Criminal Appeal rejected most of the applicant's grounds of appeal. It found no error in the sentencing judge's overall assessment of objective seriousness, nor in the manner in which the judge approached the objective seriousness findings for the firearm and accessory offences. The Court also found that the sentencing judge had not failed to address the relevant assistance factors under s 23(2) of the Sentencing Procedure Act, dismissing that ground.

However, one ground succeeded. At the time of the offence in May 2014, the threshold for a "large commercial quantity" of methylamphetamine was one kilogram, not 500 grams. The Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 reduced that threshold to 500 grams, but it operated prospectively. The sentencing judge had proceeded on the incorrect basis that the lower, post-amendment threshold applied. Because the applicant had been charged and sentenced in relation to five kilograms, the difference in thresholds affected how the seriousness of the offending fell to be calibrated against the statutory benchmarks.

That factual error was sufficient to vitiate the sentence and require the Court to resentence the applicant. On resentence, the Court applied a 30 per cent discount across all counts, reflecting the utilitarian value of the guilty plea and other subjective matters (including assistance provided to authorities). After applying totality principles to the combined indicative sentences, the Court imposed a reduced aggregate sentence of eight years' imprisonment with a non-parole period of five years and six months.

On the question of further evidence about family circumstances, the Court accepted that it had a discretion to receive such evidence on resentence, but the judgment indicates the Court considered that evidence in the context of the overall sentencing exercise without it materially altering the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Buscombe DCJ on 7 December 2016 set aside
  • In lieu thereof, an aggregate sentence of eight years' imprisonment imposed, commencing 8 April 2016 and expiring 7 April 2024
  • Non-parole period of five years and six months set, with earliest parole eligibility date of 7 October 2021
  • Indicative sentences recorded: Count 1 (drug manufacture): six years and three months with a non-parole period of four years and five months; Count 2 (prohibited firearm): two years and five months with a non-parole period of one year and eight months; Count 3 (accessory after the fact): two years and one month

Key Takeaways

  • A sentencing court applying the wrong statutory quantity threshold for a drug offence commits an error of fact that is capable of vitiating the sentence entirely, even where the quantity actually involved far exceeds either threshold.
  • The 2015 amendment reducing the "large commercial quantity" threshold for methylamphetamine from one kilogram to 500 grams operated prospectively: offending before the amendment took effect fell to be assessed against the one kilogram threshold.
  • In dismissing the assistance ground, the Court confirmed that a sentencing judge does not fail to address s 23(2) of the Crimes (Sentencing Procedure) Act 1999 simply because the judge's treatment of those factors is not exhaustive, provided the factors are genuinely considered.
  • Where the Court of Criminal Appeal resentences following a successful appeal, it re-exercises the sentencing discretion afresh across all counts and must consider totality independently of the original sentence structure.
  • Further evidence concerning an applicant's changed family circumstances may be received by the Court of Criminal Appeal on resentence, though its weight in the overall sentencing calculus will depend on the particular facts.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24
- Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A, 23, 32, 44, 53A
- Crimes Act 1900 (NSW), ss 193B, 350
- Firearms Act 1996 (NSW), ss 7, 7A, 36

Cases
- Betts v The Queen (2016) 258 CLR 420
- Carter v R [2018] NSWCCA 138
- Delaney v R; R v Delaney [2013] NSWCCA 150
- DL v The Queen [2018] HCA 32
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- King v R [2010] NSWCCA 202
- Kremesis v The Queen [2016] NSWCCA 257
- Mulato v R [2006] NSWCCA 282
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- R v Grbin [2004] NSWCCA 220
- R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
- R v Mills (2005) 154 A Crim R 40
- R v X [2004] NSWCCA 93
- R v XX [2017] NSWCCA 90