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Court of Criminal Appeal 13 April 2018

Elliott v R

[2018] NSWCCA 69

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Elliott v R [2018] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 13 April 2018
Judges: Leeming JA; Fullerton J (primary judgment); McCallum J

Background

The applicant pleaded guilty in the Dubbo District Court to two drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). The first was ongoing supply of prohibited drugs (methamphetamine, a fentanyl patch, and a buprenorphine strip) across five occasions between December 2015 and January 2016, involving co-offenders named Dunn and Kennedy. The second was a single supply count arising from 7.28 grams of methamphetamine found during a search of his home in July 2016, along with scales, cash, resealable bags, and a CCTV system.

The applicant gave evidence that his involvement was driven by a drug debt he owed to Kennedy, who directed him to supply drugs to Dunn as a means of repaying that debt. The sentencing judge accepted this explanation but also made several findings about the seriousness of the offending, including that the applicant had acted "in company" and that the ongoing supply count involved planning and organised criminal activity.

The applicant sought leave to appeal those sentences to the Court of Criminal Appeal, arguing that two specific aggravating findings were made in error.

  • Whether the sentencing judge erred by finding that the supply offence in Count 2 was aggravated by the applicant having acted "in company," without giving the applicant notice that this finding was under consideration (procedural fairness).
  • Whether the sentencing judge erred by finding that the ongoing supply count (Count 1) was aggravated under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that it involved planning and organised criminal activity.

Decision

Ground 1: Acting "in company" on Count 2

The Court accepted that the sentencing judge's reference to the applicant having acted "in company" with Dunn and Kennedy in relation to the single supply count raised the question of whether this constituted a formal aggravating factor applied without notice. However, the Court did not ultimately find this ground decisive. The sentencing judge's comments about acting "in company" appeared in the context of assessing objective seriousness rather than as a standalone statutory aggravating factor under s 21A. The Court's reasoning on this ground did not result in a finding of reversible error on its own.

Ground 2: Planning and organised criminal activity on Count 1

The Court found error in the sentencing judge's application of s 21A(2)(n), which provides for aggravation where an offence was committed as part of planned or organised criminal activity. The evidence established that the applicant's conduct was reactive to pressure from Kennedy arising from a drug debt, rather than reflecting the kind of deliberate, coordinated criminal enterprise that the planning and organisation aggravating factor is designed to capture. Treating the applicant's conduct as involving planning and organised criminal activity in that statutory sense went beyond what the facts supported.

Re-sentencing

Having found error on Ground 2, the Court exercised the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601. The Court had regard to fresh evidence on re-sentence, including the applicant's completion of two rehabilitation programs, his withdrawal from the methadone program, and ongoing family and employment support. The sentences were reduced accordingly.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed by North DCJ on 22 June 2017 quashed and replaced as follows:
  • Count 2 (supply of 7.28 grams of methamphetamine): fixed term of 18 months imprisonment, commencing 6 July 2016 and expiring 5 January 2018.
  • Count 1 (ongoing supply): non-parole period of 18 months commencing 6 November 2016 and expiring 5 May 2018, with a parole period of 12 months expiring 5 May 2019.
  • Overall effective sentence: 2 years and 10 months imprisonment.

Key Takeaways

  • A sentencing court's use of the "acting in company" concept must be applied with care, and any intention to treat it as a statutory aggravating factor under s 21A should be raised with the parties to preserve procedural fairness.
  • Under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of "planned or organised criminal activity" requires conduct that reflects deliberate coordination and criminal enterprise, not merely reactive or coerced participation in drug supply.
  • Where a sentencing judge applies an aggravating factor that the facts do not properly support, that constitutes an error in sentencing principle that may warrant intervention by an appellate court.
  • In re-sentencing following a successful appeal, the Court of Criminal Appeal may receive fresh evidence, including evidence of rehabilitation, and must exercise the sentencing discretion afresh rather than simply adjusting the original sentence.
  • Positive developments during custody, such as completion of rehabilitation programs, withdrawal from pharmacotherapy, and re-establishment of family relationships, are relevant considerations on re-sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 36Y(1)(a)

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Weir v R [2011] NSWCCA 123
- Dang v R [2014] NSWCCA 47
- Fahs v R [2007] NSWCCA 26
- Gore v R [2010] NSWCCA 330; 208 A Crim R 353
- Hewitt v R [2007] NSWCCA 353; 180 A Crim R 306
- Ng v R [2011] NSWCCA 227
- Prculovski v R [2010] NSWCCA 274
- R v Wang; R v Roizman [2013] NSWCCA 2
- Thomson v R [2014] NSWCCA 88
- White v R [2016] NSWCCA 190
- Wills v R [2014] NSWCCA 253