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36
Court of Criminal Appeal 18 October 2019

Karout v R

[2019] NSWCCA 253

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE OFFENCE NOT CARRYING STANDARD NON PAROLE PERIOD WHETHER DISPARITY ESTABLISHED

Citation: Karout v R [2019] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 18 October 2019
Judges: Hoeben CJ at CL, Brereton JA, Fullerton J

Background

The appellant pleaded guilty, three days before his trial was listed, to knowingly taking part in the supply of 140 grams of cocaine, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of 15 years imprisonment. The plea arose from his participation in a drug cutting and repressing operation at a factory in Kogarah, which was captured on surveillance devices over several weeks in 2015. Three co-offenders, including the appellant's father and brother, were also convicted of offences arising from the same operation.

The sentencing judge imposed a term of two years imprisonment with a non-parole period of one year. The judge declined to make an intensive correction order (ICO), despite making positive findings about the appellant's prospects of rehabilitation and likelihood of reoffending.

The appellant sought leave to appeal against sentence on four grounds, contending errors in the assessment of objective seriousness, the refusal to impose an ICO, parity with a co-offender's sentence, and manifest excess.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence by drawing inferences from the agreed facts
  • Whether the sentencing judge was required to consider community safety under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when deciding between an ICO and full-time custody, and whether reasons were required for that choice
  • Whether a justifiable sense of grievance arose from the disparity between the appellant's sentence and that of a co-offender
  • Whether the sentence was manifestly excessive

Decision

Objective seriousness (Ground 1): The Court confirmed that assessment of objective seriousness is a matter for the sentencing judge, and appellate intervention requires demonstration of a House v The King error, meaning a material error of principle or fact in the exercise of the discretion. The Court found it was open to the sentencing judge to conclude the offence fell in the mid-range of objective seriousness, having regard to the surveillance evidence and the nature of the appellant's participation. No error of the requisite kind was established.

ICO refusal and community safety (Ground 2): On this ground, the Court divided. Fullerton J, with whom Hoeben CJ at CL agreed, held that community safety under s 66(1) of the Crimes (Sentencing Procedure) Act is not a mandatory consideration that must dominate other sentencing purposes. Her Honour further held that the sentencing judge was not required to give reasons for preferring full-time custody over an ICO. The judge's positive findings about rehabilitation did not dictate that an ICO was the appropriate outcome; the objective seriousness of the offending and the principle of general deterrence legitimately overwhelmed other considerations. Brereton JA dissented on this ground.

Parity (Ground 3): The Court found sufficient justification for the differences between the appellant's sentence and that of the co-offender in question. No justifiable sense of grievance was established on the relevant principles drawn from Postiglione v The Queen and Green v The Queen.

Manifest excess (Ground 4): The Court found the sentence was not unreasonable or plainly unjust in the circumstances. This ground was not made out.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Assessing objective seriousness remains within the sentencing judge's discretion; the Court of Criminal Appeal will only intervene where a House v The King error is demonstrated, and mid-range findings drawn from agreed surveillance facts are open to a sentencing judge.
  • Community safety is not a mandatory consideration under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 that must dominate broader sentencing principles when deciding whether to impose an ICO (per Fullerton J and Hoeben CJ at CL; Brereton JA contra).
  • A sentencing judge is not required to give reasons for declining to make an ICO in favour of full-time custody, provided the overall sentencing exercise reflects appropriate consideration of the mandatory factors under s 66(3).
  • Positive findings about rehabilitation and low likelihood of reoffending do not, of themselves, compel the making of an ICO where objective seriousness and general deterrence weigh against it.
  • In dismissing the parity ground, the Court confirmed that differences in co-offenders' sentences will not constitute a justifiable grievance where sufficient factual or circumstantial distinctions exist between the offenders' respective roles and circumstances.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66

Cases:
- House v The King (1936) 55 CLR 499
- Postiglione v The Queen (1997) 189 CLR 295
- R v Olbrich (1999) 199 CLR 270
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v R (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Green v The Queen (2011) 244 CLR 462
- Parente v R (2017) 96 NSWLR 633
- Ali v R [2010] NSWCCA 35
- Mulato v R [2006] NSWCCA 282
- Khoury v R [2011] NSWCCA 118
- Hunter v R [2011] NSWCCA 141
- Hughes v R [2018] NSWCCA 2
- Gommeson v R [2012] NSWCCA 226
- R v Fangaloka [2019] NSWCCA 173
- Casella v R [2019] NSWCCA 201
- R v Pullen [2018] NSWCCA 264
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Georgopoulos [2010] NSWCCA 246
- R v Prasad, Krishnan, Prakash & Milford [2000] NSWCCA 539