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Court of Criminal Appeal 26 November 2018

Hanley v R

[2018] NSWCCA 262

Drugs
CRIMINAL LAW APPEAL SENTENCE OFFENCES OF DRUG SUPPLY ERROR ESTABLISHED SERIOUS OFFENDING

Citation: Hanley v R [2018] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 26 November 2018
Judges: Basten JA, McCallum J, Bellew J

Background

The applicant was convicted following a trial in the District Court of multiple offences of drug supply under the Drug Misuse and Trafficking Act 1985 (NSW), involving two prohibited drugs: 25C-NBOMe (a synthetic phenethylamine) and MDMA. The offending occurred across several transactions in mid-2014 and was committed alongside two co-offenders, in relation to whom the applicant played a subordinate role.

At first instance, the District Court sentenced the applicant to an aggregate term of 6 years imprisonment with a non-parole period of 3 years. The sentencing judge acknowledged a strong subjective case in the applicant's favour, including significant rehabilitation efforts undertaken both before and after entering custody. Despite this, his Honour concluded that those circumstances did not amount to "exceptional circumstances" justifying departure from what he understood to be the requirement to impose a custodial sentence for serious drug supply offending.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had applied an erroneous legal principle in treating a custodial sentence as effectively mandatory unless exceptional circumstances existed.

  • Whether the sentencing judge erred by applying the principle that drug trafficking requires a custodial sentence absent exceptional circumstances, a principle since abandoned by the Court of Criminal Appeal.
  • Whether the error materially affected the exercise of the sentencing discretion, particularly given the applicant's strong subjective case.
  • What sentence was appropriate upon re-sentencing, taking into account the seriousness of the offending, the applicant's relative culpability compared to co-offenders, and the applicant's rehabilitation.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. It accepted that the sentencing judge had applied a principle recognised in subsequent decisions, particularly Parente v R [2017] NSWCCA 284 and Robertson v R [2017] NSWCCA 205, as reflecting error. The principle that drug trafficking invariably requires a custodial sentence absent exceptional circumstances had been abandoned, and the sentencing judge's reasoning was firmly anchored in that erroneous constraint.

McCallum J added that the decision in Parente stands for more than the removal of a formulaic requirement. It affirmatively recognises the sentencing judge's discretion to impose a non-custodial sentence even for serious drug offences where the circumstances warrant it. In the present case, the sentencing judge had himself accepted that a custodial term would substantially interrupt the applicant's significant rehabilitation progress, which McCallum J described as a powerful consideration.

On re-sentencing, the Court reduced the aggregate term to 4 years imprisonment with a non-parole period of 2 years. The Court took into account the seriousness of the offending, the applicant's subordinate role relative to his co-offenders, and the strong subjective case including demonstrated rehabilitation. By the time of the appeal, the applicant had already served a substantial portion of his sentence, which meant that referral for an Intensive Correction Order was no longer a practical option, and the applicant did not seek that outcome.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Aggregate sentence imposed in the District Court set aside.
  • In lieu thereof, an aggregate sentence of 4 years imprisonment imposed, commencing 12 May 2017 and expiring 11 May 2021, with a non-parole period of 2 years commencing 12 May 2017 and expiring 11 May 2019.
  • Indicative component sentences recorded pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW):
  • Count 2: 1 year 6 months imprisonment (non-parole period 9 months)
  • Count 5: 2 years 8 months imprisonment (non-parole period 1 year 4 months)
  • Ex-officio indictment count: 3 years 4 months imprisonment (non-parole period 1 year 8 months)
  • Earliest parole eligibility date: 11 May 2019.

Key Takeaways

  • The principle that drug trafficking offences require a custodial sentence absent exceptional circumstances has been abandoned in NSW, following Parente v R [2017] NSWCCA 284 and Robertson v R [2017] NSWCCA 205. A sentencing judge who applies that principle commits a sentencing error.
  • Parente does more than remove a formulaic constraint: it restores the full breadth of the sentencing discretion, permitting a non-custodial outcome in appropriate drug supply cases regardless of whether "exceptional circumstances" can be formally identified.
  • Where a sentencing judge expressly acknowledges that custody will substantially interrupt an offender's significant rehabilitation, that finding is a powerful consideration capable of affecting the choice between custodial and non-custodial options.
  • Established error in the application of a sentencing principle is sufficient to enliven the appeal jurisdiction and require re-sentencing, even where the offending itself is characterised as serious.
  • In re-sentencing after a substantial portion of a custodial sentence has already been served, the Court of Criminal Appeal may treat certain alternative orders (such as an Intensive Correction Order) as no longer practically available, shaping the available sentencing options on appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 12 and 53A(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205
- Dayment v R [2018] NSWCCA 132
- R v Clark (Court of Criminal Appeal NSW, 15 March 1990, unreported)