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
Date: 13 February 2019
Judge(s): Hoeben CJ at CL; Wright J; Fagan J

Background

The applicant, a long-term methamphetamine user, was convicted after trial of two counts of supplying an indictable quantity of drugs. The offences were committed in May 2013, approximately two weeks after the expiration of his parole from an eight-year sentence imposed in 2006 for substantially similar drug supply offences.

The sentencing judge assessed the applicant's role as a mid-to-low-level supplier who also used significant quantities of methamphetamine personally, placing the overall objective seriousness slightly below the mid-range. She deferred sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the applicant to undertake residential rehabilitation, but serious cardiac illness prevented him from completing the program. He was ultimately sentenced on 15 September 2017 to an aggregate term of 6.5 years with a non-parole period of four years.

The applicant sought leave to appeal on four grounds, contending the sentence was manifestly excessive, that the sentencing judge failed to give proper effect to her finding of special circumstances, and that she gave undue weight to both specific and general deterrence having regard to his mental health conditions.

Legal Issues

  • Whether the aggregate sentence of 6.5 years with a four-year non-parole period was manifestly excessive, including whether the accumulation on Count 2 was appropriate
  • Whether the sentencing judge gave proper effect to her finding of special circumstances by adjusting the statutory non-parole period ratio sufficiently
  • Whether the sentencing judge gave undue weight to specific deterrence given the applicant's efforts at rehabilitation and the involuntary nature of his departure from residential programs
  • Whether the sentencing judge failed to sufficiently reduce the weight given to general deterrence in light of the applicant's mental disorder

Decision

Ground 1: Manifest Excess and Accumulation

The applicant argued that the sentencing judge erred in characterising both counts as falling slightly below the mid-range of objective seriousness, contending that Count 2 (involving 18.5g of drugs) was more towards the lower end. The Court rejected this argument, finding that a single overall assessment of the offending was appropriate given the counts arose from the same occasion, related to the same drug supply enterprise, and were to be disposed of together (at [38]-[40]). Where an aggregate sentence is imposed, the appeal lies from the aggregate sentence, and the relevant question is whether it reflects the totality of the criminality. The Court found no basis to conclude the aggregate sentence was unreasonable or plainly unjust (at [40]).

Ground 2: Special Circumstances and Non-Parole Period

The applicant submitted that the adjustment to the statutory ratio amounted to no more than lip service to the concept of special circumstances. The Court found this submission was based on a misstatement of the sentence: the non-parole period of four years represented 61.5 per cent of the 6.5-year head sentence, which constitutes a significant reduction from the statutory ratio and adequately fulfilled the identified need for additional supervision (at [42]). No error was established in how the sentencing judge gave effect to her special circumstances finding (at [43]).

Ground 3: Specific Deterrence

The applicant contended that his persistent, if unsuccessful, attempts at rehabilitation and the involuntary nature of his exits from treatment programs demonstrated a reduced need for specific deterrence. The Court observed that a ground framed in terms of weight is unlikely to establish error under the House v The King principle (at [46]). In any event, the sentencing judge had good reason to place significant emphasis on specific deterrence: the applicant's prospects of rehabilitation were assessed as no better than "guarded," the present offences were committed within weeks of the expiration of a previous sentence for similar conduct, and he had continued to use illegal drugs throughout the bail period and even after trial (at [47]-[49]). Fagan J added that there comes a point where significant weight must be given to specific deterrence of a mid-life repeat offender who has not, of his own volition, corrected the addiction driving his offending, despite powerful incentives and multiple opportunities to do so (at [63]).

Ground 4: General Deterrence and Mental Disorder

The applicant argued the sentencing judge gave too much weight to general deterrence given his diagnosed PTSD and amphetamine use disorder. The Court found the sentencing judge had explicitly acknowledged the applicant's conditions made him a less suitable vehicle for general deterrence (at [52]). However, the same mental health conditions that moderated the weight of general deterrence simultaneously increased the significance of specific deterrence, because they directly caused the drug use that drove the offending (at [53]). The Court confirmed that mental illness does not automatically reduce a sentence and can pull in different directions (at [54]). The weight to be given to these competing considerations remained within the sentencing judge's discretion, and no error was identified (at [55]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Mental illness does not automatically reduce a sentence. The Court of Criminal Appeal confirmed that where an offender's psychiatric conditions directly cause the conduct constituting the offence, those same conditions may heighten the need for specific deterrence even while reducing the weight given to general deterrence (at [53]-[54]).

  • A ground of appeal framed in terms of the weight a sentencing judge gave to a particular factor is unlikely to disclose House v The King error. Such a complaint is more appropriately characterised as a particular of manifest excess (at [46]).

  • Where an aggregate sentence is imposed under section 11 of the Crimes (Sentencing Procedure) Act, accumulation between individual counts cannot be analysed in the same way as under traditional sentencing structures. The only relevant question on appeal is whether the aggregate sentence reflects the totality of the criminality (at [40]).

  • A reduction in the ratio of the non-parole period to the head sentence to 61.5 per cent represents a significant departure from the statutory ratio and can constitute adequate effect being given to a finding of special circumstances, depending on the circumstances (at [42]).

  • Prospects of rehabilitation assessed as no better than "guarded," combined with a history of reoffending shortly after release and continued drug use throughout bail and post-trial proceedings, provided sound basis for the sentencing judge to place considerable emphasis on specific deterrence despite the offender's genuine but ultimately incomplete rehabilitation efforts (at [47]-[49]).

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