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Court of Criminal Appeal 15 February 2019

Purdie v R

[2019] NSWCCA 22

DrugsFraud & dishonesty
CRIME APPEAL AGAINST SENTENCE PROCEDURAL FAIRNESS DENIAL OF PROCEDURAL FAIRNESS SENTENCE QUASHED

Citation: Purdie v R [2019] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 15 February 2019
Judges: Bathurst CJ, Hoeben CJ at CL, Price J

Background

The appellant pleaded guilty in the District Court to two offences: supplying an indictable quantity of cocaine (87.32 grams) on 22 March 2016, and knowingly dealing with the proceeds of crime ($39,450) on 25 May 2016. He was sentenced to an aggregate term of four years and six months' imprisonment, with a non-parole period of three years.

The supply offence was unusual in that the appellant claimed to have knowingly supplied talcum powder rather than cocaine, believing he could not be convicted of drug supply if no actual prohibited drug was involved. The proceeds of crime charge arose from cash seized during a search warrant, a portion of which was traced to undercover drug purchase operations conducted by Strike Force Bamberry.

The appellant was sentenced alongside three co-offenders. At the sentencing hearing, the agreed facts and submissions addressed certain matters, but the sentencing judge went on to make additional adverse factual findings that had not been raised with the parties during proceedings.

  • Whether the sentencing judge denied the appellant procedural fairness by making adverse factual findings that went beyond the agreed facts without raising those findings with the parties.
  • Whether the appellant had a justifiable sense of grievance in light of the sentences imposed on co-offenders.
  • Whether the sentence was manifestly excessive.

Decision

The Court of Criminal Appeal upheld the first ground of appeal: the sentencing judge had made adverse findings about the appellant that went beyond the agreed facts, without alerting the appellant's counsel to the matters the judge was minded to find. Those findings concerned matters such as the appellant's sophistication in evading police, immediate financial gain, and ongoing involvement in criminal conduct. The judge had not raised these issues during the sentencing proceedings so as to give the appellant an opportunity to respond.

Price J acknowledged it was open to the sentencing judge to reject the appellant's characterisation of the offending as a "one-off" and a "joke." However, where a judge is minded to make factual findings adverse to an offender that go beyond what the parties have addressed, the judge is obliged to raise those matters with counsel. That did not occur here, beyond a single comment about the amount of cash seized. Notably, the question of the appellant's identity in relation to a username found in the co-offenders' proceedings was never raised with the Crown or defence in the appellant's own sentencing.

The Court found the appellant had been deprived of a fair hearing at first instance. Because this ground succeeded, the Court did not proceed to consider the remaining grounds concerning parity with co-offenders or manifest excess.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence imposed on 17 November 2017 quashed.
  • Matter remitted to the District Court at Sydney for re-sentence.
  • Matter listed for mention at the District Court at Sydney on 1 March 2019 to fix a date for sentence.

Key Takeaways

  • A sentencing judge who is minded to make adverse factual findings beyond the agreed facts must raise those matters with the parties, giving the offender a meaningful opportunity to respond by evidence or submissions.
  • Procedural fairness obligations at sentencing are not discharged by a passing remark about one factual matter when multiple additional adverse findings are contemplated.
  • Where a denial of procedural fairness is established, the appropriate remedy is to quash the sentence and remit for re-sentence, without the appellate court needing to assess whether the substantive findings themselves were available on the evidence.
  • The Court did not rule on whether the underlying adverse findings could have been sustained if made properly; that question was left for the re-sentencing exercise.
  • Grounds of appeal concerning parity with co-offenders and manifest excess were rendered unnecessary by the procedural fairness ground succeeding, and the Court expressed no view on their merits.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 193B

Cases
- Assam v R [2019] NSWCCA 12
- Chow v DPP (1992) 28 NSWLR 593
- DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Nguyen v R [2015] NSWCCA 268
- R v Falls [2004] NSWCCA 335
- R v Uzabeaga [2000] NSWCCA 381; (2000) 119 A Crim R 452
- Re Minister for Immigration and Multicultural Affairs and Another ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weir v R [2011] NSWCCA 123