Citation: Daher v R [2018] NSWCCA 287
Court: Court of Criminal Appeal, NSW
Date: 14 December 2018
Judges: Payne JA (with Simpson AJA and Johnson J agreeing)
Background
The applicant pleaded guilty in the District Court to three counts of drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), including a charge of ongoing supply of cocaine for financial reward, along with related possession charges under the Poisons and Therapeutic Goods Act 1966 (NSW). The offences involved supplying cocaine to a small circle of acquaintances over several months in 2013, with the applicant also facilitating supplies through an associate. A controlled police operation captured some of the conduct, including a supply to an undercover operative.
The sentencing judge in the District Court imposed an aggregate head sentence of 5 years and 6 months imprisonment, with an aggregate non-parole period of 3 years and 4 months. A 15 per cent discount was applied for the guilty pleas, and a finding of special circumstances was made, resulting in a non-parole period of approximately 60.6 per cent of the total sentence.
The applicant sought leave to appeal, arguing that the sentencing judge had not properly assessed the objective seriousness of the offending, had misapplied the concept of conditional liberty, and that the resulting sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to make any proper assessment of the objective seriousness of the drug supply offending, including by omitting reference to the quantity of drugs involved
- Whether the sentencing judge erred by treating the applicant's conditional liberty as a factor going to objective seriousness rather than as a subjective circumstance bearing on moral culpability
- Whether the aggregate sentence was manifestly excessive
Decision
Objective seriousness and drug quantity: The Court found that the sentencing judge had erred by failing specifically to identify and address the factors bearing on objective seriousness, including the quantity of drugs involved. Payne JA held that it is not possible properly to assess the objective gravity of offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without at least some consideration of the quantity of prohibited drug involved. This constituted a sentencing error warranting appellate intervention.
Conditional liberty: The Court rejected the second ground of appeal. The sentencing judge had treated the applicant's commission of offences while on conditional liberty as a subjective factor bearing on moral culpability, rather than as a circumstance elevating the objective seriousness of the offending. The Court held that this approach was not erroneous.
Manifest excess: Given the Court's conclusion that resentencing was required on the first ground, it was unnecessary to separately consider whether the original sentence was manifestly excessive.
Resentencing: On resentencing, the Court assessed the objective seriousness of the offending as falling at the lower end of the scale. The quantities involved were relatively small, the drug supply enterprise was amateurish, the recipients formed a small circle, and the supply was conducted largely to facilitate the applicant's own drug use. The Court maintained the 15 per cent guilty plea discount and preserved the special circumstances finding, retaining the approximately 60 per cent non-parole ratio. The aggregate head sentence was reduced to 4 years and 6 months, with an aggregate non-parole period of 2 years and 9 months.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- The aggregate head sentence and non-parole period imposed by Judge Culver on 21 February 2017 quashed
- In substitution, an aggregate head sentence of 4 years and 6 months imprisonment with an aggregate non-parole period of 2 years and 9 months, each commencing 4 February 2017, with the head sentence expiring 3 August 2021
- First eligible date for release to parole: 3 November 2019
Key Takeaways
- A sentencing court cannot properly assess the objective seriousness of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act 1985 without at least some consideration of the quantity of prohibited drug involved; omitting this factor constitutes a sentencing error.
- Treating the commission of offences while on conditional liberty as a subjective circumstance going to moral culpability, rather than as a matter of objective seriousness, is a permissible approach and does not constitute error.
- Where a sentencing error on objective seriousness is established, the question of manifest excess becomes unnecessary to consider separately, as resentencing proceeds afresh.
- In assessing objective seriousness at resentencing, the Court treated small quantities, an amateurish operation, a limited circle of recipients, and supply motivated by the offender's own drug habit as features placing the conduct at the lower end of the seriousness scale.
- Findings of special circumstances and guilty plea discounts made at first instance need not automatically be disturbed on resentencing where no error in those assessments is identified.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25, 25A
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Delaney v R; R v Delaney [2013] NSWCCA 150
- EF v R [2015] NSWCCA 36
- Harris v R [2015] NSWCCA 81
- Hurst v R [2017] NSWCCA 114
- Kentwell v The Queen 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 240 CLR 120
- Munda v State of Western Australia (2013) 249 CLR 600
- Parente v R [2017] NSWCCA 284
- R v Campbell [2014] NSWCCA 102
- Remington v R [2018] NSWCCA 98
- Sharma v R [2017] NSWCCA 85
- Wong v The Queen (2001) 207 CLR 584