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Court of Criminal Appeal 22 May 2019

Jackson v R

[2019] NSWCCA 101

Drugs
SENTENCING APPEAL AGAINST SENTENCE NO LESSER SENTENCE WARRANTED

Citation: Jackson v R [2019] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 22 May 2019
Judges: Johnson J, R A Hulme J, Wright J

Background

The applicant pleaded guilty in the Local Court to supplying a large commercial quantity of MDMA, offering to supply a large commercial quantity of MDMA, and knowingly dealing with the proceeds of crime. He was committed to the District Court, where Scotting DCJ sentenced him on 28 September 2017. Eight additional matters were taken into account on a Form 1.

The sentences, which included a 25% discount for the early guilty plea and a finding of special circumstances, resulted in an overall effective term of nine years' imprisonment with a non-parole period of five years and six months. The sentencing judge delivered his remarks on sentence ex tempore, spanning approximately nineteen and a half pages of transcript.

The applicant sought leave to appeal on the basis that the sentencing judge erred by treating the offences as aggravated under paragraphs (m), (n), and (o) of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which address offences involving a series of criminal acts, offences forming part of planned or organised criminal activity, and offences committed for financial gain, respectively.

  • Whether the sentencing judge actually concluded that the three offences were aggravated within the meaning of s 21A(2)(m), (n), and (o) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • If so, whether the sentencing judge denied the applicant procedural fairness in reaching those conclusions.
  • Whether, if error in the exercise of the sentencing discretion was established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).

Decision

The Court of Criminal Appeal's primary finding was that the sentencing judge did not, in fact, conclude that the offences were aggravated within s 21A(2)(m), (n), or (o). Under the heading "Aggravating factors" in the remarks on sentence, Scotting DCJ stated in three short sentences that the offences involved a series of criminal acts, were part of planned or organised criminal activity, and were committed for financial gain. However, there was no further analysis or elaboration under that heading, and no indication that those observations meaningfully affected the sentences actually imposed.

Wright J (with whom Johnson J and R A Hulme J agreed) examined the structure of the remarks on sentence as a whole and concluded that the observations under the "Aggravating factors" heading appeared to have been made as statements of descriptive fact rather than as operative findings that elevated the sentence. The sentencing judge's substantive analysis of objective seriousness occurred under a separate heading and placed both drug offences slightly below the midrange, with the proceeds of crime offence in the low range. Those assessments were unchallenged on appeal.

On the alternative basis, even if the sentencing judge had erred by treating those matters as formal aggravating factors, the Court held that no lesser sentence was warranted. The Court took account of the applicant's addiction to prescription opioids as the direct cause of the offending, his dysfunctional background, the absence of any substantial criminal history, his good prospects of rehabilitation, his remorse, and his early guilty plea. The Court also accepted that the partial accumulation of non-parole periods appropriately reflected the different criminality involved in each offence.

The appeal was dismissed on both grounds: first, because no operative error in the identification of aggravating factors was established; and second, because even on the alternative hypothesis of error, s 6(3) of the Criminal Appeal Act 1912 (NSW) required dismissal where no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A brief recitation of s 21A(2) aggravating factors under a heading in sentencing remarks, without further analysis or any apparent effect on the sentence actually imposed, may not constitute a formal finding that those factors aggravated the sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that leave to appeal may be granted even where the appeal ultimately fails, provided the grounds were arguable.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), an appeal against sentence must be dismissed if the appellate court is not satisfied that a lesser sentence is warranted in law, even where an error in the exercise of sentencing discretion is identified.
  • Where a sentencing judge's assessment of objective seriousness is not challenged on appeal, that unchallenged finding forms part of the factual foundation against which any asserted sentencing error must be measured.
  • Personal circumstances, including addiction, dysfunctional background, remorse, an early guilty plea, and good prospects of rehabilitation, can together weigh substantially in a defendant's favour even in serious drug supply matters.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m), (n), (o); s 33
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- DBW v R [2007] NSWCCA 236
- DL v The Queen [2018] HCA 32
- Mansour v R [2011] NSWCCA 28; 209 A Crim R 275
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- Stokes v R [2008] NSWCCA 123; 185 A Crim R 74