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14
Court of Criminal Appeal 13 November 2018

Taylor v R

[2018] NSWCCA 255

DrugsFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE

Citation: Taylor v R [2018] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 13 November 2018
Judge(s): White JA, Walton J, Wilson J

Background

The appellant was sentenced in the District Court at Penrith to an aggregate term of 7 years' imprisonment, with a non-parole period of 4 years, following convictions for a range of drug supply and firearms offences committed on two separate occasions in 2013 and 2015. The offences involved significant quantities of methylamphetamine and other prohibited drugs, as well as unlicensed possession of firearms and prohibited weapons. Police located much of the contraband during search warrant executions at the appellant's home and, later, during a search of his vehicle.

The appellant sought leave to appeal against the sentence imposed by Sutherland SC DCJ, contending that the sentencing judge had failed to take into account his limited criminal history as a mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), and had given insufficient weight to his personal circumstances, including his limited intellect.

  • Whether the sentencing judge's failure to expressly identify the appellant's limited criminal history as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 constituted error.
  • Whether the sentencing judge gave insufficient weight to the appellant's personal circumstances, including his limited intellect, in arriving at the sentence.

Decision

On the first ground, Wilson J (with whom White JA and Walton J agreed) held that a sentencing judge's omission to refer expressly to a particular mitigating factor does not, of itself, establish that the factor was not taken into account. Whether such an omission amounts to error depends on the circumstances of the case, including whether the remarks on sentence were delivered ex tempore (meaning, given orally at the time rather than reserved and written). The remarks in this case were ex tempore, a factor that weighs against drawing an inference of error from silence.

On the second ground, the Court found that the appellant had failed to demonstrate that the sentencing judge gave insufficient weight to his subjective case. The sentencing judge had accepted that the appellant's desire to end his drug use was genuine and concluded that he had reasonable or optimistic prospects of rehabilitation, notwithstanding that he was assessed as unsuitable for a residential rehabilitation programme.

The Court also noted that a report concerning the appellant's suitability for residential rehabilitation was never formally tendered into evidence, and no submissions were made about it at the sentencing hearing. A sentencing judge cannot be in error for failing to address material that was not in evidence and about which no finding was sought, citing Zreika v R at [80]–[83].

Both grounds were dismissed as without merit.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to expressly mention a mitigating factor listed in s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 does not automatically establish error on appeal. Whether an inference of error can be drawn depends on the specific circumstances, including whether the remarks on sentence were given ex tempore.
  • The Court of Criminal Appeal confirmed that ex tempore sentencing remarks are a relevant contextual consideration when assessing whether an omission connotes a failure to have regard to a mitigating factor.
  • No error arises from a sentencing judge's failure to refer to material that was not formally tendered into evidence and about which no submissions were made, consistent with Zreika v R.
  • Accepting a finding of genuine rehabilitation intent and reasonable prospects of rehabilitation is sufficient engagement with an offender's subjective case, even where access to a specific rehabilitation programme is unavailable.
  • In dismissing the appeal, the Court reinforced that the weight given to personal circumstances in sentencing is a matter for the sentencing judge, and appellate intervention requires demonstrated error rather than a mere difference of view about the appropriate weight.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Zreika v R [2012] NSWCCA 44
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424
- JM v R [2014] NSWCCA 297
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36