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Court of Criminal Appeal 16 October 2019

Musgrove v R

[2019] NSWCCA 245

DrugsFraud & dishonesty
CRIME APPEALS APPEALS AGAINST SENTENCE LEAVE TO APPEAL REFUSED

Citation: Musgrove v R [2019] NSWCCA 245
Court: Court of Criminal Appeal, NSW
Date: 16 October 2019
Judges: Bell P; Simpson AJA; R A Hulme J

Background

The applicant pleaded guilty in the District Court to two counts of knowingly dealing with proceeds of crime (involving $60,000 and $200,000 respectively) and one count of knowingly participating in a criminal group involved in drug supply and money laundering. The offences occurred over a short period in mid-2016, when the applicant physically delivered large sums of cash to members of a Vietnamese money laundering syndicate. He was motivated by financial stress and the promise of receiving a vehicle as payment.

Judge Girdham SC imposed an aggregate sentence with a head sentence of 4 years and 6 months and a non-parole period of 2 years and 9 months. A 25% discount was applied for early guilty pleas, and special circumstances were found, producing a non-parole period representing approximately 61.1% of the head sentence. The sentencing judge characterised each offence as falling below the mid-range of objective seriousness.

The applicant sought leave to appeal on the single ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 4 years and 6 months (non-parole period 2 years and 9 months) was manifestly excessive in the sense of being unreasonable or plainly unjust.
  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including remorse, rehabilitation, personal history, and the relatively limited nature of his role.

Decision

The Court unanimously refused leave to appeal, with Bell P delivering the substantive reasons and Simpson AJA and R A Hulme J both agreeing. The applicable test was whether the aggregate sentence was unreasonable or plainly unjust, consistent with Dinsdale v R (2000) 202 CLR 321.

Bell P found the sentence was well within the range open to the sentencing judge. Although the offending was characterised as falling below mid-range (and indeed well below mid-range given the sentence actually imposed), the applicant had played a deliberate role in a serious and organised operation. He was trusted to distribute large sums of money he knew derived from drug sales, and the amounts involved were far from trivial even if greater sums were possible.

On the subjective case, the Court was satisfied the sentencing judge had fully and appropriately taken all relevant matters into account. These included the applicant's difficult upbringing, his substance use disorder, financial pressures at the time of offending, his pre-arrest cessation of involvement with the criminal group, his rehabilitation efforts, his remorse, his low-to-medium assessed risk of reoffending, and his good prospects for rehabilitation.

The degree of concurrency built into the aggregate sentence, together with the generous ratio of non-parole period to head sentence resulting from the special circumstances finding, reinforced the conclusion that the sentence was not manifestly excessive. The sentence reflected the judge's view of the combination of offending as serious, but not among the most serious seen in courts of this kind.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that an aggregate sentence will only be set aside as manifestly excessive if it is unreasonable or plainly unjust, a demanding threshold.
  • A sentencing judge's characterisation of offences as falling below the mid-range of objective seriousness does not, of itself, indicate that a substantial custodial sentence is disproportionate, particularly where multiple serious offences are combined.
  • Where a sentencing judge expressly addresses the applicant's subjective circumstances in the remarks on sentence and gives "full weight" to those matters, an appellate court will be slow to find error on that basis.
  • The existence of substantial concurrency in an aggregate sentence, and a reduced non-parole period resulting from a special circumstances finding, are relevant considerations in assessing whether a sentence is within the available range.
  • Under ss 93T(1) and 193B(1) of the Crimes Act 1900 (NSW), the applicable maximum penalties are 5 years and 20 years respectively, and those maxima inform the sentencing range even where individual instances of offending fall below the mid-point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 93T(1) (knowingly participating in a criminal group), 193B(1) (dealing with proceeds of crime)

Cases
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Alou v R [2019] NSWCCA 231
- Hughes v R [2018] NSWCCA 2
- Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
- R v Shi [2004] NSWCCA 135