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Court of Criminal Appeal 19 July 2019

Darcy v R

[2019] NSWCCA 159

DrugsFraud & dishonesty
EVIDENT ON THE MATERIALS GROUNDS ASSERTING PATENT ERROR

Citation: Darcy v R [2019] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 19 July 2019
Judges: Leeming JA; R A Hulme J; Davies J

Background

The applicant pleaded guilty in the District Court to three offences: supplying cocaine on an ongoing basis, supplying cocaine on a single occasion, and knowingly dealing with proceeds of crime. The offences arose from four street-level sales of cocaine to a police agent over a ten-day period in Sydney's eastern suburbs, each transaction involving approximately two grams at $600. When police executed a search warrant at his home, they found further cocaine, digital scales, freezer bags, and $34,840 in cash.

The sentencing judge imposed an aggregate sentence of three years and nine months' imprisonment, with a non-parole period of two years. The applicant presented a strong subjective case, including an early guilty plea, good prospects of rehabilitation, and a background involving serious sporting injuries that had derailed a promising rugby league career and negatively affected his mental health.

The applicant sought leave to appeal against the sentence on two grounds: that the sentencing judge failed to give any weight to his remorse, and that the aggregate sentence was manifestly excessive.

  • Whether the primary judge erred by failing to treat remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), where no submissions on remorse were made at the sentencing hearing.
  • Whether the aggregate sentence of three years and nine months was manifestly excessive, having regard to the objective seriousness of the offences, the parity between the indicative sentences, and the applicant's subjective circumstances.

Decision

Ground 1: Remorse. The Court of Criminal Appeal found no error in the primary judge's failure to make an express finding of remorse. The applicant's counsel had not made any submissions at the sentencing hearing specifically directed to remorse as a mitigating factor, and remorse was not self-evident on the materials before the judge. The Court emphasised that the appellate court is not a venue for running a reformulated or improved version of the case below. Its function is to identify error of principle, fact, or law, or a sentencing discretion that has miscarried; it does not conduct a fresh hearing on the merits.

Ground 2: Manifest excess. The Court noted a procedural concern about how the manifest excess ground had been particularised. The applicant identified specific sub-grounds asserting patent error, but success on a discrete sub-ground does not automatically establish manifest excess in the overall aggregate sentence. The Court observed that grounds in sentence appeals must be carefully formulated to avoid the situation where an applicant succeeds on a narrow error but the Court is not thereby required to reassess the sentence overall.

Objective seriousness. The Court found no error in the primary judge's assessment of the objective seriousness of the supply offences. That assessment is an evaluative task squarely within the sentencing judge's discretion, and the Court of Criminal Appeal is slow to intervene. The issue had not been raised below, and even if some error could be made out, it would not have produced a manifestly excessive outcome.

Indicative sentences and totality. The Court found no improper disparity between the indicative sentences for the two drug supply offences. The ongoing supply offence carries an additional element, being repeated supply for financial or material reward, which justified a longer indicative sentence. The Court also found the aggregate sentence was not unreasonable or plainly unjust, noting that the primary judge had found special circumstances and reduced the non-parole period from the statutory 75 per cent to 53 per cent, and had appropriately weighed general deterrence given the applicant was on bail at the time of the offences.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • No error arises from a sentencing judge's failure to find remorse as a mitigating factor where no submissions were directed to that issue at the hearing and where remorse was not self-evident on the available materials.
  • The Court of Criminal Appeal's role is to identify sentencing error or a miscarried discretion, not to hear a re-run or improved version of the applicant's case below.
  • In dismissing the appeal, the Court confirmed that assessing the objective seriousness of offences is a matter classically within a sentencing judge's discretion, and appellate intervention on that question requires a high threshold.
  • Indicative sentences for related but distinct offences are not independently reviewable on appeal; they are only relevant insofar as they bear on whether the aggregate sentence is manifestly excessive or inadequate.
  • Under the aggregate sentencing framework, a finding of special circumstances can reduce the non-parole period below the statutory 75 per cent benchmark, and a reduction to 53 per cent was upheld as appropriate in this case having regard to the applicant's rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Mulato v R [2006] NSWCCA 282
- R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Hurmz v R [2017] NSWCCA 235