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Court of Criminal Appeal 1 February 2019

Mihelic v R

[2019] NSWCCA 2

Drugs
CRIME APPEAL FAILURE TO ASSESS REMORSE ADEQUATELY NON UNFAIR APPROACH BUT NO LESSER SENTENCE WARRANTED

Citation: Mihelic v R [2019] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 1 February 2019
Judge(s): Hoeben CJ at CL, Rothman J, Price J

Background

The appellant pleaded guilty in the District Court to two offences of supply of prohibited drugs under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The first and more serious offence involved supplying 3,545 grams of MDMA (a large commercial quantity); the second involved supplying 558 grams of cocaine (a commercial quantity). Both offences arose from a series of transactions between December 2014 and February 2015, in which the appellant supplied drugs to an undercover police officer as part of a controlled operation known as "Strike Force Cheth."

The District Court sentenced the appellant to an effective head sentence of six years' imprisonment with a non-parole period of four years, with the sentences for both offences running fully concurrently. The appellant had no relevant prior criminal record and was serving his first term of imprisonment.

The appellant sought leave to appeal that sentence to the Court of Criminal Appeal on two grounds: that the sentencing judge failed to properly find remorse, and that the judge failed to find reduced moral culpability arising from police involvement in the offences.

  • Whether the sentencing judge erred by not making a positive finding of remorse in circumstances where the appellant gave oral evidence of remorse that was not challenged or rejected with explanation.
  • Whether the sentencing judge erred by failing to find that the appellant's moral culpability was reduced because police initiated and facilitated the offending through the controlled operation.

Decision

On the remorse ground, Rothman J found that the sentencing judge's approach was, in a relevant sense, unfair. The appellant gave oral evidence of remorse that was not directly challenged in cross-examination, yet the sentencing judge effectively rejected that evidence without providing any explanation for doing so. The Court found this was inconsistent with the rule in Browne v Dunn (which requires a party intending to contradict or disregard a witness's evidence to put that challenge to the witness) and with basic principles requiring reasons when oral evidence is not accepted.

On the moral culpability ground, the Court accepted that a finding of reduced moral culpability was available on the evidence, given that police had initiated contact and facilitated the transactions. This was a factor the sentencing judge did not adequately address.

Despite finding errors on both grounds and granting leave to appeal, the Court declined to impose a lesser sentence. Rothman J described the original sentence as "extremely lenient" given the seriousness of the offences, the quantities involved, and the applicable maximum penalties and standard non-parole periods. A reduction would not properly reflect the requirements of general and specific deterrence, nor the gravity of offending of this magnitude. The Court also noted that a lower sentence might generate a justifiable sense of grievance in co-offenders who were sentenced under different, and more favourable, circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court that receives oral evidence of remorse must either accept it or, if it is to be disregarded, provide a reason for not accepting it. Failure to do so amounts to an error in the sentencing process.
  • The rule in Browne v Dunn applies in sentencing proceedings: where a party intends to reject or contradict a witness's oral evidence, that intention should be put to the witness in cross-examination.
  • Police initiation and facilitation of offending through a controlled operation is a recognised basis for a finding of reduced moral culpability, and sentencing judges are required to engage with that issue where the evidence raises it.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically result in a reduced sentence: the appellate court must be satisfied that a lesser sentence is warranted in law.
  • Where the original sentence is already at the lenient end of the available range, an appellate court may decline to interfere even where errors are established, particularly where the offending is of significant seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), ss 4, 38

Cases:
- Browne v Dunn (1893) 6 R 67
- RPS v R (2000) 199 CLR 620; [2000] HCA 3
- Peachey v R [2011] NSWCCA 30
- Pham v R [2010] NSWCCA 208
- Newman v R [2018] NSWCCA 208
- Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
- Taouk v R (1992) 65 A Crim R 387
- R v Rahme (1991) 53 A Crim R 8
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1