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Court of Criminal Appeal 14 December 2018

O’Neile v R

[2018] NSWCCA 291

Drugs
SENTENCE SUPPLY PROHIBITED DRUG OFFENCES METHYLAMPHETAMINE AND CANNABIS SENTENCING ORDERS

Citation: O'Neile v R [2018] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 14 December 2018
Judges: Simpson AJA, Walton J, Wilson J

Background

The appellant was a mid-level drug dealer who pleaded guilty in the Armidale District Court to three offences under the Drug Misuse and Trafficking Act 1985 (NSW): ongoing supply of methylamphetamine (261.7 g in total), a separate supply of 13.88 g of methylamphetamine, and supply of 380.3 g of cannabis. He was sentenced in October 2017 by way of an aggregate sentence carrying a non-parole period of five years and an additional term of two and a half years.

The sentencing judge imposed indicative sentences of six years for the ongoing supply count, 18 months for the separate methylamphetamine supply, and two years for the cannabis supply. The appellant was sentenced at the same time as two co-offenders, who were assessed as street-level dealers and received substantially lighter sentences.

On appeal, the appellant raised three grounds: a justified sense of grievance arising from the disparity with his co-offenders' sentences, manifest excess in the aggregate sentence, and that the sentencing judge had applied the wrong maximum penalty for the cannabis offence. The Crown conceded the third ground, making it unnecessary to determine the other two.

  • Whether the sentencing judge applied the incorrect maximum penalty for the cannabis supply offence (count 3), and if so, whether that error materially affected the aggregate sentence
  • Whether, once error was established, the Court of Criminal Appeal was required to re-sentence the appellant afresh

Decision

The correct maximum penalty for the cannabis supply offence under s 25(1) of the Drug Misuse and Trafficking Act was 10 years imprisonment. The sentencing judge stated, however, that count 3 "also carries a maximum penalty of 15 years imprisonment," mirroring the maximum applicable to the methylamphetamine supply count. This error appears to have been contributed to by incorrect written submissions from the appellant's own counsel at first instance, which the Crown neither corrected at the sentencing hearing nor during submissions. The Crown conceded on appeal that the judge had acted on the wrong maximum.

Walton J applied the principles from Battersby v R [2018] NSWCCA 141 and Andreata v R [2015] NSWCCA 239, which establish that a misstatement of the maximum penalty vitiates the sentencing exercise unless the Crown can show there was no real possibility the error affected the outcome. Although the indicative sentence for count 1 dominated the aggregate, Walton J found that the indicative sentences for counts 2 and 3 together increased the head sentence by a total of approximately 18 months. There was therefore a real possibility the error had a material impact on the aggregate sentence, and ground 3 was upheld.

Following Kentwell v R (2014) 252 CLR 601 and Lehn v R [2016] NSWCCA 255, the Court was required to exercise the sentencing discretion afresh, independently assessing the appropriate sentence for the appellant having regard to the offences and his personal circumstances. The Court reduced the aggregate sentence on re-sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed on 19 October 2017 quashed
  • The appellant re-sentenced to a total term of 6 years and 9 months commencing 17 January 2017, comprising a non-parole period of 4 years and 4 months expiring 16 May 2021, and a balance of term of 2 years and 5 months expiring 16 October 2023

Key Takeaways

  • A sentencing judge's misstatement of the applicable maximum penalty will vitiate the exercise of sentencing discretion unless the Crown affirmatively establishes there was no real possibility the error influenced the outcome, consistent with Battersby v R and Andreata v R.
  • Where an incorrect maximum penalty is applied in the context of an aggregate sentence, the dominant indicative sentence alone does not shield lesser indicative sentences from the taint of the error; a material impact on the aggregate must be assessed as a whole.
  • Once House v R error of this kind is established, the Court of Criminal Appeal must exercise the sentencing discretion independently and afresh, rather than merely adjusting the original sentence.
  • Both defence and prosecution bear some responsibility for the accuracy of maximum penalty submissions placed before a sentencing court; an error originating in defence submissions and uncorrected by the Crown still constituted vitiating error in this case.
  • In dismissing the parity and manifest excess grounds as unnecessary, the Court confirmed that a Crown concession on a discrete, determinative ground can make it unnecessary to traverse other grounds of appeal.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Battersby v R [2018] NSWCCA 141
- Bobbin v R [2016] NSWCCA 38
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- R v Wong [2018] NSWCCA 20
- Andreata v R [2015] NSWCCA 239
- House v R [1936] HCA 40; 55 CLR 499
- Markarian v R [2005] HCA 25; 228 CLR 357