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Court of Criminal Appeal 31 October 2018

Nye v R

[2018] NSWCCA 244

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE CONSIDERATION OF RE SENTENCE QUESTION OF MITIGATORY DURESS NO LESSER SENTENCE WARRANTED IN LAW

Citation: Nye v R [2018] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 31 October 2018
Judge(s): Hoeben CJ at CL, Walton J, Button J

Background

The applicant pleaded guilty in the District Court at Parramatta to three serious drug supply offences, including supplying more than the large commercial quantity of methylamphetamine (over 3.9 kilograms) and a large commercial quantity of amphetamine (over 1.34 kilograms). Police discovered the drugs following a random breath test in the town of Hay and a subsequent search warrant executed at the applicant's suburban Sydney home. A total sentence of eight years' imprisonment with a non-parole period of five years and eight months was imposed in June 2017.

The applicant sought leave to appeal on three grounds. The Crown conceded two of those grounds involved errors by the sentencing judge: first, that the judge wrongly applied an aggravating factor for a "series of criminal acts" when the offences were discrete, and second, that the judge applied an incorrect maximum penalty of 25 years (rather than the correct 20 years) for one of the supply offences.

Because those concessions opened the door to re-sentencing, the Court also considered the first ground, which argued that the sentencing judge had erred in assessing the applicant's moral culpability, including his claim that he acted under duress.

  • Whether the sentencing judge incorrectly applied the aggravating factor in s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by treating the discrete offences as a "series of criminal acts"
  • Whether the sentencing judge applied the wrong maximum penalty for the commercial quantity supply offence under the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the sentencing judge erred in assessing the applicant's moral culpability, particularly in relation to a claim of mitigatory (non-exculpatory) duress
  • Whether, on re-sentencing, a lesser sentence was warranted in law

Decision

The Court accepted both Crown concessions as correct. On the first conceded error, the Court noted that the applicant was sentenced for three discrete offences, none of which individually comprised a series of criminal acts, making the s 21A(2)(m) aggravating factor inapplicable. On the second, following Campbell v R, the Court was not satisfied the sentencing judge had appreciated and applied the correct 20-year maximum penalty for the commercial quantity offence. Both errors were traced to documents prepared by the prosecutor at first instance that went uncorrected by defence counsel.

Those concessions triggered a re-sentencing exercise. Applying DL v The Queen, the Court treated all of the sentencing judge's factual findings and evaluative judgments as binding, except those explicitly put in dispute. On the question of duress, the applicant had claimed he was coerced into transporting and storing the drugs by a violent criminal associate who had previously assaulted him and threatened further harm. Button J noted this fell short of exculpatory duress but was capable of sounding in mitigation of moral culpability.

Even accepting the applicant's account of mitigatory duress, Button J concluded that no lesser finding of moral culpability was warranted. The Court observed that the quantities involved were very large, the offending occurred on multiple occasions, the applicant's claimed ignorance of the precise quantities was implausible given his repeated involvement, and the benefit he received, though not financial, was substantial: protection from one violent criminal by another. The individual sentences were described as by no means harsh when measured against the applicable maximum penalties and standard non-parole periods.

Exercising the sentencing discretion afresh, the Court concluded it would not impose shorter sentences for any individual offence, nor a lesser total sentence, than those originally imposed. Accordingly, despite the two conceded errors, the Court declined to intervene.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Conceded sentencing errors, including the misapplication of an aggravating factor and use of an incorrect maximum penalty, were sufficient to enliven the Court of Criminal Appeal's re-sentencing jurisdiction, even where the ultimate sentences remained unchanged.
  • Under DL v The Queen, a court conducting a re-sentence on appeal is bound by all factual findings and evaluative judgments of the original sentencing judge except those explicitly disputed before the appellate court.
  • Non-exculpatory (mitigatory) duress can reduce an offender's moral culpability in drug supply sentencing, but the extent of any reduction depends on the full circumstances, including the nature and scale of the offending and the benefit actually obtained by the offender.
  • In dismissing the appeal, the Court confirmed that the benefit relevant to assessing moral culpability is not limited to financial gain: protection from violence obtained through the offending was treated as a significant benefit.
  • Errors introduced into sentencing proceedings through prosecution documents that go unchallenged by defence counsel can still constitute appealable errors, as the responsibility for accuracy at sentence lies with the court, not only with the parties.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33

Cases:
- Campbell v R [2018] NSWCCA 17
- DL v The Queen [2018] HCA 32