AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 15 February 2019

Abdul v R

[2019] NSWCCA 18

DrugsPublic order & justice offences
SENTENCING RELEVANT FACTORS ON SENTENCE YOUTH

Citation: Abdul v R [2019] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 15 February 2019
Judges: Bathurst CJ at [1]; Hoeben CJ at CL at [53]; Price J at [54]

Background

The applicant, a young man aged between 20 and 21 at the time of the offences and 22 at sentence, pleaded guilty to four counts of knowingly taking part in the supply of prohibited drugs (amphetamine, MDMA, cocaine, and MDA) and one count of knowingly directing the activities of a criminal group. The drug quantities involved were substantial, with two counts attracting a maximum penalty of life imprisonment. He had one prior conviction for drink-driving, which the sentencing judge found to have no adverse bearing on the sentence.

The sentencing judge found the applicant occupied a senior, controlling role in the drug distribution organisation. He was described as the "entrepreneurial force" who negotiated prices, offered discounts, set order commitments, and utilised others to make deliveries, with no one more senior above him. On the basis of that role, the sentencing judge concluded the applicant was "clearly operating as an adult" despite his age, while also noting a reasonable prospect of rehabilitation and a low risk of reoffending if he ceased drug use.

The sentencing judge imposed an aggregate sentence of 12 years and 6 months, comprising a non-parole period of 9 years and a balance of term of 3 years and 6 months. The applicant sought leave to appeal on the grounds that the sentencing judge had failed to give adequate weight to his youth and the importance of rehabilitation, and had erred in the adjustment made for special circumstances.

  • Whether the sentencing judge erred by failing to take the applicant's youth into account when determining an appropriate sentence.
  • Whether the sentencing judge erred by failing to give adequate weight to the importance of rehabilitation when setting the head sentence and non-parole period.
  • Whether the sentencing judge erred in determining the appropriate adjustment for special circumstances in setting the non-parole period.

Decision

On the youth ground, Bathurst CJ held that while youth is ordinarily a relevant mitigating factor in sentencing, it carries reduced weight where the conduct involves significant planning, reflection, or other indicia of mature decision-making. The applicant's role, which was undisputed, placed him at the apex of a sophisticated drug distribution operation. The sentencing judge correctly concluded that, in those circumstances, the applicant was operating as an adult, and no error arose from treating him accordingly.

On rehabilitation, the Court found no error. The sentencing judge had expressly identified the applicant's reasonable prospects of rehabilitation in the remarks on sentence. The complaint that rehabilitation was not taken into account was not borne out on a fair reading of those remarks.

On the special circumstances adjustment, Bathurst CJ reiterated that this is a matter within the sentencing judge's discretion, and appellate courts should be slow to intervene. No error of discretion was demonstrated. The Court also noted that neither the indicative sentences nor the aggregate sentence suggested the applicant's youth had been overlooked, particularly given the severity of the offending, two counts of which carried maximum terms of life imprisonment.

At the applicant's request, the Court refused leave to appeal rather than granting leave and dismissing the appeal. This preserved the applicant's right to seek leave on parity grounds should the sentence of a co-offender later give rise to a justifiable sense of grievance.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that youth, while generally a mitigating factor in sentencing, may be given reduced weight where the offender's conduct demonstrates significant planning, entrepreneurial initiative, and a senior controlling role more consistent with mature, adult decision-making.
  • A sentencing judge does not err by concluding that a young adult "operated as an adult" where the offender occupied the apex of a criminal drug distribution organisation, with no one more senior above them.
  • Sufficient attention to rehabilitation is demonstrated where the sentencing judge expressly identifies the offender's prospects for rehabilitation in the remarks on sentence, even if those prospects do not produce a dramatic reduction in the sentence imposed.
  • The appropriate adjustment for special circumstances remains a matter within the sentencing judge's discretion, and an appellate court should be slow to intervene absent a demonstrated error.
  • In refusing leave rather than granting leave and dismissing the appeal, the Court preserved the applicant's potential right to raise a parity argument if a co-offender's sentence later created a justifiable sense of grievance.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 93T(4A)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25(2)

Cases
- Assam v The Queen [2019] NSWCCA 12
- Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372
- BP v The Queen [2010] NSWCCA 159
- Bullock v The Queen [2016] NSWCCA 131
- IS v The Queen [2017] NSWCCA 116
- KT v The Queen [2008] NSWCCA 51
- PC v The Queen [2016] NSWCCA 137
- R v Lachlan [2015] NSWCCA 178
- Simkhada v The Queen [2010] NSWCCA 284