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Court of Criminal Appeal 9 November 2018

El-Sayed v R

[2018] NSWCCA 250

Drugs
CRIME SENTENCE APPEAL PAROLE PERIOD GROUND LACKS MERIT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: El-Sayed v R [2018] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 9 November 2018
Judge(s): Basten JA; R A Hulme J; Hamill J

Background

The appellant pleaded guilty in the District Court to two counts of supplying a prohibited drug, 1,4 Butanediol, in amounts exceeding the commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a police stop in Kings Cross in May 2014, which led to the discovery of the drug at the scene and later at the appellant's home. Five additional offences, including supply of methylamphetamine and dealing with suspected proceeds of crime, were taken into account on a Form 1 document attached to the more serious count.

The District Court sentenced the appellant to a principal term of 10 years imprisonment with a non-parole period of five years. The judge assessed the objective seriousness of each supply offence as falling in the middle of the range. The appellant had two prior drug supply convictions, in 2003 and 2008, both involving methylamphetamine.

The appellant sought leave to appeal on the grounds that the sentencing judge erred in assessing objective seriousness and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences, including by describing 1,4 Butanediol as "an amphetamine" without evidentiary support for that characterisation
  • Whether the judge erred by failing to assess each offence's objective seriousness separately
  • Whether the sentences imposed were manifestly excessive

Decision

Ground 1: Objective seriousness

The Court found that ground 1 lacked merit overall, though the judges expressed some reservations about the sentencing judge's language. The sentencing judge had remarked that 1,4 Butanediol was "an amphetamine," apparently prompted by an off-hand comment from the prosecutor, and despite acknowledging there was no evidence before him about the drug's chemistry or effects. The Court of Criminal Appeal accepted that the sentencing judge was using the word "amphetamine" as part of a reference to the drug being proscribed by legislation, rather than making a factual finding about the drug's nature. However, Hamill J observed that the introduction of the term was "unfortunate, if not erroneous," given the absence of supporting evidence and the fact that the legislature treats amphetamine as a more dangerous substance based on comparative commercial quantity thresholds.

Notwithstanding these observations, all three judges agreed that the mid-range assessment of objective seriousness, while not the assessment each judge would have made, was a conclusion open to the sentencing judge on the material before him. The ground was not established.

Ground 2: Manifest excess

The Court upheld the manifest excess ground. R A Hulme J found that the starting point before applying the 25 per cent guilty plea discount, which was 13 years and 4 months, was erroneously excessive. The Court resentenced the appellant, reducing the aggregate term significantly. Hamill J added observations about the interplay between a ground of manifest excess and the need to identify specific error, noting that a finding of manifest excess is itself a conclusion, and drawing attention to Carroll v The Queen as authority for the proposition that articulating specific error where possible remains important in sentence appeals.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentences imposed in the District Court on 17 June 2016 for both commercial drug supply offences quashed
  • In substitution, an aggregate term of imprisonment of 7 years and 6 months imposed, with a non-parole period of 4 years and 6 months, dating from 1 December 2015, with eligibility for parole from 30 May 2020

Key Takeaways

  • A sentencing judge's reference to an unsubstantiated drug characteristic, here describing 1,4 Butanediol as "an amphetamine" without supporting evidence, may be erroneous, but will not necessarily constitute a reviewable error if the context of extemporaneous remarks indicates the impugned characterisation was not the basis for the objective seriousness assessment.
  • An assessment of objective seriousness in the mid-range will survive appeal if it was a conclusion open to the sentencing judge, even where the appellate court would not have reached the same conclusion.
  • Where a starting point before a discount for guilty plea is set at an erroneously excessive level, the resulting sentence may be manifestly excessive even if the individual sentencing factors were otherwise correctly identified.
  • Hamill J confirmed, citing Carroll v The Queen, that manifest excess is a conclusion and not itself a ground of error; where possible, appellants should articulate the specific patent error that explains why the sentence was excessive.
  • The Court of Criminal Appeal reduced a 10-year head sentence (with a 5-year non-parole period) to an aggregate term of 7 years and 6 months (with a 4-year and 6-month non-parole period) for two commercial quantity drug supply offences, taking into account the appellant's history, personal circumstances, and guilty pleas.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), Schedule 1
- Crimes Act 1900 (NSW), ss 193C(2), 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Mulato v R [2006] NSWCCA 282
- Obeid v R [2017] NSWCCA 221; (2017) 350 ALR 103
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534