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Court of Criminal Appeal 15 February 2019

Matu v R

[2019] NSWCCA 23

Drugs
CRIME APPEAL AGAINST SENTENCE AGGRAVATING AND MITIGATING FACTORS GENERIC STATEMENT OF PRINCIPLE APPEAL AGAINST SENTENCE ARITHMETICAL ERROR

Citation: Matu v R [2019] NSWCCA 23
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 Local Court to two drug supply offences: supplying a large commercial quantity of MDMA (approximately 2.4 kilograms) and supplying an indictable quantity of cocaine (approximately 115 grams), both contrary to the Drug Misuse and Trafficking Act 1986 (NSW). He was sentenced in the District Court to an aggregate term of seven years' imprisonment with a non-parole period of four years and six months, commencing 26 May 2016. A 25 per cent discount was applied for the utility of his guilty pleas.

The appellant was 20 years old at the time of offending. He had a diagnosis of paranoid schizophrenia assessed as partly treatment resistant, and a history of cannabis and stimulant use disorder in remission. Expert evidence described him as having reasonable prospects of rehabilitation. His role in the drug network was as a "runner" or "driver," delivering drugs and returning cash payments, for a weekly retainer of $1,000.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge erred in applying aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW); and second, that the judge set the wrong commencement date for the sentence.

  • Whether the sentencing judge properly applied the aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically: financial gain (s 21A(2)(o)), a series of criminal acts (s 21A(2)(m)), and planned or organised criminal activity (s 21A(2)(n))
  • Whether the sentencing judge's reasons were proper and adequate in addressing those aggravating factors
  • Whether the sentence commencement date contained an arithmetical error requiring correction

Decision

Ground 1: Aggravating factors and adequacy of reasons

The Court of Criminal Appeal examined whether the sentencing judge's reasons, read as a whole, adequately demonstrated engagement with the Crown's reliance on three aggravating factors: financial gain, a series of criminal acts, and planned or organised criminal activity. The appellant argued that the judge's remarks amounted to a generic statement of principle rather than a genuine application of those factors to his case.

Price J, with whom Bathurst CJ and Hoeben CJ at CL agreed, rejected this ground. The Court was satisfied that the reasons, considered as a whole, did not reveal any real possibility that the judge failed to apply correct legal principle. The reasons were found to be proper and adequate, and no error was established in the treatment of the aggravating factors.

Ground 2: Commencement date

The Crown conceded that the sentence should have commenced on 25 May 2016, the date of the appellant's arrest, not 26 May 2016 as recorded in the sentencing remarks. The judge had expressly noted in his remarks that the appellant had been in custody since 25 May 2016, making the later date an inadvertent arithmetical error. Consistent with the approach in Lehn v R (2016) 93 NSWLR 205, the Court held that an arithmetical error of this kind does not require the sentencing discretion to be exercised afresh. The sentence was adjusted accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentence imposed in the District Court confirmed, but directed to commence on 25 May 2016
  • Non-parole period of 4 years 6 months commencing 25 May 2016 and expiring 24 November 2020
  • Balance term of 2 years 6 months commencing 25 November 2020 and expiring 24 May 2023

Key Takeaways

  • A sentencing judge's reasons need not exhaustively address every aggravating factor in express terms; the Court of Criminal Appeal will assess whether the reasons as a whole demonstrate proper application of legal principle, not merely whether each factor was explicitly enumerated.
  • Where a discrepancy between the stated commencement date and the acknowledged date of custody is plainly an inadvertent arithmetical error, the appellate court may correct it without conducting a full resentencing exercise.
  • Under the principle in Lehn v R, arithmetical or clerical errors in a sentence do not automatically attract a fresh exercise of the sentencing discretion.
  • In dismissing the first ground, the Court confirmed that a generic reference to ss 21A(2) and (3) in sentencing remarks is not necessarily fatal where the body of the remarks discloses substantive engagement with the relevant factors.
  • The decision illustrates that an accused's limited role as a "runner" in a drug supply network, and the presence of significant mental health issues, are matters a sentencing court may weigh against aggravating features such as involvement in planned or organised criminal activity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
- Drug Misuse and Trafficking Act 1986 (NSW), s 25 (supply of prohibited drugs)

Cases:
- Assam v R [2019] NSWCCA 12
- DBW v R [2007] NSWCCA 236
- Hudson v R [2016] NSWCCA 278
- Kassoua v R [2017] NSWCCA 307
- Lee v R [2016] NSWCCA 146
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40
- Wat v R [2017] NSWCCA 62