AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 13 February 2019

Burgess v R

[2019] NSWCCA 13

Drugs
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 4 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPLICANT A LONG TERM DRUG USER HEALTH

Citation: Burgess v R [2019] NSWCCA 13
Court: Court of Criminal Appeal, New South Wales
Date: 13 February 2019
Judge(s): Hoeben CJ at CL; Wright J; Fagan J

Background

The appellant was convicted by a jury of two counts of supplying drugs, namely 163.25 grams of methylamphetamine and 18.5 grams of 4-methoxymethylamphetamine, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a police search of his car on 13 May 2013, during which officers found multiple quantities of drugs in separately sealed packaging, alongside measuring spoons, mobile phones, and resealable bags. A subsequent search of his home uncovered digital scales, additional phones, and ice pipes.

The appellant had a directly comparable prior record. In 2006, the Court of Criminal Appeal had increased his sentence on a Crown appeal for supplying a commercial quantity of methylamphetamine, resulting in a total term of eight years with a non-parole period of five years and six months from April 2005. The offences now under appeal were committed approximately two weeks after the expiry of his parole under that sentence.

Judge Wass SC sentenced the appellant on 15 September 2017 to an aggregate term of six and a half years' imprisonment with a non-parole period of four years. Before imposing sentence, her Honour deferred proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to give the appellant an opportunity to attend residential drug rehabilitation. Three separate attempts to complete rehabilitation were cut short by serious health complications, including cardiac episodes requiring hospitalisation.

The appellant raised four grounds of appeal:

  • Whether the aggregate sentence of six and a half years with a four-year non-parole period was manifestly excessive
  • Whether the sentencing judge failed to give proper effect to her finding of special circumstances so as to vary the statutory ratio between the non-parole period and the total sentence
  • Whether the sentencing judge gave undue weight to specific deterrence
  • Whether the sentencing judge failed to give proper effect to her finding that the appellant's physical and mental condition made him a less suitable vehicle for general deterrence

Decision

The Court of Criminal Appeal dismissed all four grounds and refused leave to appeal. Applying the well-established principle from House v The King (1936), the Court confirmed that appellate intervention is only warranted where error in the exercise of sentencing discretion is affirmatively established, not merely because a different outcome might have been available.

On manifest excess, the Court found that the sentence was within the range appropriate to the objective seriousness of the offending, which the sentencing judge had placed slightly below the mid-range. The Court noted that the appellant's role as a mid-to-low level supplier, combined with his significant criminal history and the proximity of the offences to the expiry of his parole, provided ample justification for the penalty imposed.

On special circumstances, the Court rejected the argument that her Honour had failed to give effect to her own finding. The sentencing judge had in fact varied the statutory ratio (which, under standard sentencing practice, produces a non-parole period equal to three-quarters of the total term) to reflect the appellant's circumstances, even if that variation was modest given the countervailing weight of his history.

On deterrence, Fagan J (with whom the other judges agreed on this point) concluded that there was no error in the sentencing judge's approach to specific deterrence. The appellant had reoffended in the same way, at the same scale, almost immediately after completing a lengthy custodial sentence for equivalent conduct. He had continued to use methamphetamine daily during the period leading up to trial and had relapsed intermittently during the adjournment for rehabilitation. The Court found that, notwithstanding the appellant's genuine psychological difficulties, a sentencing judge was entitled to place significant weight on specific deterrence in those circumstances. The question of how much weight to assign to each relevant factor remained within the sentencing judge's discretion, and no appellate error was made out.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the weight assigned to competing sentencing factors, including subjective matters such as mental health, rehabilitation prospects, and personal circumstances, remains a matter for the sentencing judge, and appellate courts will not intervene merely because a different balance was possible.

  • A finding of special circumstances does not automatically produce a substantial variation to the statutory ratio between the non-parole period and the total term; the extent of any variation must be weighed against all other sentencing considerations, including criminal history and the need for deterrence.

  • Specific deterrence can properly be given significant weight where an offender has reoffended in materially the same way, at a similar scale, almost immediately after serving a lengthy sentence for comparable conduct, even where that offender has genuine and documented mental health conditions and a history of trauma.

  • The Court affirmed that psychological disturbance and long-term drug dependency, while relevant mitigating factors under principles confirmed in Bugmy v The Queen (2013), do not automatically reduce the role of deterrence in sentencing, particularly where an offender has had repeated opportunities to seek rehabilitation and has not followed through.

  • Attempts to complete residential rehabilitation that are frustrated by ill-health beyond an offender's control can be taken into account on sentence, but their weight may be limited where the overall pattern of behaviour, including continued drug use during the adjournment period, undermines the rehabilitation case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases
- Aslan v R [2014] NSWCCA 114
- Biddle v R [2017] NSWCCA 128
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Chaouk v R [2017] NSWCCA 295
- Healey v R [2018] NSWCCA 214
- House v The King [1936] HCA 40; 55 CLR 499
- JT v R [2012] NSWCCA 133
- Kresovic v R [2018] NSWCCA 37
- Ngati v R [2018] NSWCCA 32
- Nguyen v The Queen [2016] HCA 17; 256 CLR 656
- Regina v Burgess [2006] NSWCCA 319
- R v MacDonnell [2002] NSWCCA 34
- Tuite v R [2018] NSWCCA 175