Citation: Trimarchi v Regina [2019] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 14 August 2019
Judges: Simpson AJA, Harrison J, N Adams J
Background
The appellant was a 41-year-old rigger with minimal prior criminal history who pleaded guilty in the District Court to four counts of supplying prohibited drugs (cocaine, methorphan, and MDMA) and one count of possessing an unauthorised pistol (a BB gun). A further six offences were taken into account on Form 1, including supplies of ketamine, additional MDMA, cocaine, and butanediol, as well as possession of ammunition. Police had identified the appellant through electronic surveillance before executing a search warrant on his unit, where they discovered drugs concealed in hollowed-out household items such as spray cans and a candle.
The sentencing judge in the District Court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), comprising a non-parole period of two years and a head sentence of three years. The judge provided indicative sentences for each individual count, with the highest being two years and six months for the MDMA supply count. The judge refused to impose an intensive correction order, which the appellant's counsel had sought.
The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had erred in assessing the objective seriousness of the drug offences and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to make a proper individual assessment of the objective seriousness of each drug offence under the Drug Misuse and Trafficking Act 1985 (NSW), including whether the judge misapplied the so-called "Clarke principle" by treating the offences as a "smorgasbord" rather than assessing each one separately.
- Whether the aggregate sentence of three years imprisonment with a two-year non-parole period was manifestly excessive in all the circumstances.
Decision
The Court unanimously dismissed both grounds of appeal, with N Adams J delivering the leading judgment and Simpson AJA and Harrison J agreeing.
On the first ground, the Court found no demonstrated error in the sentencing judge's assessment of objective seriousness. The Clarke principle requires a sentencing court to assess the objective seriousness of each individual offence rather than treating a collection of drug offences as an undifferentiated mass. The Court accepted that indicative sentences were provided for each count, and it was not persuaded that the judge had impermissibly merged the offences or treated them as a composite whole in a way that distorted the assessment of individual culpability.
On the manifest excess ground, the Court applied the well-established standard from Lowndes v The Queen (1999) 195 CLR 665, namely that an appellate court may intervene only where the sentence is unreasonable or plainly unjust, not merely because the appellate court would have sentenced differently. The Court noted that the drug quantities were not insignificant, the supply of cocaine was not an isolated act, and the Form 1 matters legitimately added weight to personal deterrence and retribution. The Court also observed that while the sentencing judge described the adjustment to the non-parole period ratio as "minor," the ratio was in fact reduced from the statutory 75% to 66.6%, which amounted to a meaningful concession to the appellant.
Considering the appellant's favourable subjective circumstances, including stable employment history, absence of relevant prior convictions, early guilty plea, strong support network, and positive rehabilitation prospects, the Court found those matters had plainly been weighed by the sentencing judge. The appellant had not established that the sentence was unreasonable or plainly unjust, and leave to appeal was granted only for the appeal to be dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The Clarke principle requires a sentencing court to assess the objective seriousness of each individual drug offence separately rather than treating multiple drug offences as a collective "smorgasbord," but the Court of Criminal Appeal found no error where indicative sentences were provided for each count.
- In dismissing the manifest excess ground, the Court reaffirmed the Lowndes standard: a sentence will only be set aside as manifestly excessive if it is unreasonable or plainly unjust, not merely because the appellate court would have sentenced differently.
- Form 1 offences (matters taken into account without separate penalty) do not bear on the objective seriousness of the principal counts to which they relate, but may lawfully increase the weight given to personal deterrence and retribution.
- A non-parole period expressed as a ratio below the statutory 75% can represent a meaningful concession to an offender, even where the sentencing judge characterises the adjustment as minor.
- Favourable subjective circumstances, including prior good character, stable employment, an early guilty plea, and positive rehabilitation prospects, do not automatically displace a term of full-time imprisonment where the objective seriousness of the offending warrants it.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 65(3)
Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Daher v R [2018] NSWCCA 287
- Delaney v R; R v Delaney [2013] NSWCCA 150
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- Parente v R [2018] 96 NSWLR 633; [2017] NSWCCA 284
- R v Brown [2012] NSWCCA 199
- R v Campbell [2014] NSWCCA 102
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)
- R v Van Ryn [2016] NSWCCA 1
- Sponberg v R [2017] NSWCCA 120
- Tepania v R [2018] NSWCCA 247