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Court of Criminal Appeal 7 December 2018

Veith v R

[2018] NSWCCA 284

Drugs
SENTENCING SUPPLY OF A PROHIBITED DRUG SENTENCE APPEAL WEIGHT TO BE GIVEN TO CHARACTER INSTINCTIVE SYNTHESIS

Citation: Veith v R [2018] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judge(s): Fullerton J, Davies J, Lonergan J (judgment delivered by Lonergan J)

Background

The appellant was arrested on the third day of the Splendour in the Grass music festival in Byron Bay in July 2016. Police observed her apparently avoiding a drug detection dog. A search uncovered 31 capsules of MDMA (total gross weight 2.5 grams, purity 70.5%) in her handbag. She admitted the capsules were intended to be supplied, though not for money, and that she intended to take some herself.

The appellant pleaded guilty to supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 15 years imprisonment. The District Court at Lismore sentenced her to 12 months imprisonment, fully suspended on entry into a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant's subjective case was strong. She was in her mid-twenties, held a university degree, had assumed a parenting role for younger siblings after family difficulties, performed volunteer work, and had no prior convictions. Multiple character referees described the offending as entirely out of character.

  • Whether the sentencing judge erred by treating the appellant's prior good character and subjective circumstances as carrying less weight because such circumstances are "not unusual" in drug supply cases, an approach associated with the since-overruled principles in R v Clark (1990).
  • Whether the sentencing judge impermissibly took an "anterior step" in the sentencing process by first determining whether the appellant was substantially involved in drug trafficking, rather than applying the instinctive synthesis method required by Markarian v The Queen (2005).
  • Whether the sentence imposed was manifestly excessive.

Decision

Ground 1: Good character and the Clark principles. The Court accepted that the sentencing judge's remark that subjective circumstances including good character are "not unusual for people who find themselves in this position and carry less weight in relation to the supply of illicit drugs" reflected the overruled approach in R v Clark. That approach had been squarely rejected in Parente v R [2017] NSWCCA 284. The Court found error was established on this ground.

Ground 2: Anterior step and instinctive synthesis. The Court also found error in the sentencing judge's treatment of the question of whether the appellant had been engaged in "substantial drug trafficking" as a threshold or anterior inquiry, rather than weighing all relevant factors together through the instinctive synthesis method. The sentencing judge had concluded that substantial trafficking could not be established beyond reasonable doubt and then moved to sentence, rather than synthesising all factors holistically. This was a separate and distinct error.

Ground 3: Manifest excess. Despite the two errors found, the Court held that manifest excess had not been made out. The number of capsules, their relatively high purity, and the circumstances of the offending (an overt and conspicuous festival environment with prominent police and drug-detection presence) meant there was nothing unreasonable or plainly unjust in imposing a term of imprisonment, even if fully suspended.

Re-sentencing. Because error was established, the Court was required to re-exercise the sentencing discretion. After weighing the appellant's excellent character, remorse, strong rehabilitation prospects, and low risk of reoffending against the significant factors of general deterrence and community protection, the Court concluded that no sentence less than that imposed at first instance was warranted. The appeal was dismissed under s 6(3) of the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Time within which to file a notice of appeal extended to 6 March 2018.
  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Clark principles, which treated good character as carrying reduced weight in drug offences simply because such circumstances are common among drug offenders, have been overruled and must not be applied.
  • Under the instinctive synthesis method affirmed in Markarian v The Queen, a sentencing court must weigh all relevant factors together rather than resolving preliminary threshold questions (such as whether an offender was "substantially" involved in trafficking) as anterior steps before sentencing.
  • Establishing sentencing error on appeal does not automatically result in a reduced sentence. Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the appellate court asks whether a different sentence is warranted in law, and may dismiss the appeal if the original sentence falls within the available range.
  • In dismissing the appeal, the Court gave significant weight to general deterrence and community protection in drug supply cases, even where the quantity was modest, the supply was non-commercial, and the offender had an otherwise excellent character.
  • An offender's strong subjective case, including prior good character, remorse, and low reoffending risk, does not eliminate the relevance of general deterrence in drug supply sentencing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW) s 25, Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 12, 21A
- Criminal Appeal Act 1912 (NSW) s 6

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Parente v R [2017] NSWCCA 284
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
- Ryan v R (2001) 206 CLR 267; [2001] HCA 21
- Athos v R (2013) 233 A Crim R 302; [2013] NSWCCA 205
- Johnson v R [2017] NSWCCA 43
- Lam v R [2014] NSWCCA 50
- R v Mauger [2012] NSWCCA 51
- Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
- Vaiusu v R [2017] NSWCCA 71
- Van Can Ha v R [2008] NSWCCA 141
- Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49