Citation: Azzopardi v R [2019] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judges: Bathurst CJ, Fullerton J, R A Hulme J
Background
The applicant pleaded guilty in the District Court to three offences of supplying methylamphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), involving quantities of 138.94g, 92.29g, and 82g respectively. A further offence of supplying amphetamine (61.49g) was taken into account on a Form 1. The offences were detected through a controlled police operation in which an undercover officer purchased drugs from a third party, who obtained some of those drugs from the applicant.
At the sentencing hearing, the applicant gave evidence that he was merely "moving gear" as a favour to his brother-in-law, delivering bags of drugs to a man named Malouf without receiving any financial reward. The sentencing judge, Judge Sweeney, rejected that account and sentenced the applicant to an aggregate term of five years' imprisonment with a non-parole period of three years.
The applicant sought leave to appeal on three grounds: that the sentencing judge wrongly rejected his evidence of no financial reward; that the judge misapplied the Court of Criminal Appeal's reasoning in Parente v R (2017) 96 NSWLR 633; and that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in rejecting the applicant's evidence that he received no financial reward for the drug supplies
- What the correct appellate standard is for reviewing factual findings made on sentence
- Whether the sentencing judge misapplied Parente v R in a way that improperly constrained consideration of sentencing alternatives
- Whether the aggregate sentence of five years' imprisonment was manifestly excessive
Decision
Ground 1: Rejection of no-financial-reward evidence
The Court confirmed that the correct appellate approach to asserted factual errors on sentence is to ask whether the finding was "open to be made," applying AB v R [2014] NSWCCA 339. It is not sufficient to show that a different finding was also open. The Court found that the sentencing judge was entitled to be sceptical of the applicant's account, having regard to his manner of giving evidence in chief and under cross-examination, as well as factual circumstances in the agreed facts inconsistent with his story.
Once the applicant's account was properly rejected, it followed that the judge could also reject the related contention that his culpability was reduced because he received no money. The burden of establishing that mitigating circumstance rested on the applicant, and he had not discharged it. The Court applied The Queen v Olbrich (1999) 199 CLR 270 on the onus question.
Ground 2: Misapplication of Parente v R
The applicant argued that the judge's reference to Parente v R, and specifically to observations about "drug dealing to a significant degree," improperly led her to impose a full-time custodial sentence without considering alternatives. The Court rejected this. Where a sentence of imprisonment is clearly appropriate and the length has been set at five years, consideration of a non-custodial alternative simply does not arise. The reference to the Parente passage did not constrain the judge's discretion in any impermissible way.
Ground 3: Manifest excess
The Court noted that the starting points before guilty plea reductions were approximately four years and eight months for Count 1 and three years and six months each for Counts 2 and 3. Given the maximum penalty of 15 years per offence and the Form 1 offence, the relatively modest degree of accumulation leading to a five-year aggregate reflected significant weight being given to the applicant's strong subjective case, which included testimonials from colleagues, family, and friends. The Court was not persuaded that the sentence was unreasonable or plainly unjust, applying the principles discussed in Obeid v R (2017) 96 NSWLR 155.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- The appellate standard for reviewing factual findings on sentence is whether the finding was "open to be made," not whether an alternative finding was also available. This is a deliberately deferential standard.
- Where a sentencing applicant asserts a mitigating circumstance (such as receiving no financial reward for a drug supply), the onus of establishing that circumstance rests on the applicant. Rejection of the applicant's evidence on that point entitles the sentencing judge to reject the mitigating claim entirely.
- A reference to Parente v R and its observations about significant drug dealing does not automatically vitiate a sentence. The Court of Criminal Appeal found no misapplication where the judge's overall approach remained sound and the sentence length independently justified a custodial term.
- Where a custodial sentence is plainly appropriate and its length has been determined, non-custodial alternatives do not require separate consideration. The Parente principles about alternatives are not engaged in those circumstances.
- In dismissing the manifest excess ground, the Court confirmed that the test requires the applicant to show the sentence was unreasonable or plainly unjust, a high threshold that the significant subjective case and modest accumulation in this instance did not displace.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 68(3)
Cases
- AB v R [2014] NSWCCA 339
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Robertson v R [2017] NSWCCA 205
- Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
- Hordern v R [2019] NSWCCA 138
- Gibson v R [2019] NSWCCA 221
- TH v R [2019] NSWCCA 184
- Yin v R [2019] NSWCCA 217
- EF v R [2015] NSWCCA 36
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Peter Francis Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)