AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 20 December 2019

Malouf v R

[2019] NSWCCA 307

Drugs
CRIMINAL LAW REFERENCE WAS MISLEADING SENTENCING DISCRETION RE EXERCISED

Citation: Malouf v R [2019] NSWCCA 307
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 at Campbelltown to supplying methylamphetamine and amphetamine each in commercial quantities, possessing prohibited weapons (knuckle dusters), and occupying premises used as drug premises. The offences occurred over approximately two months at a semi-rural property at Kemps Creek on the outskirts of Sydney. Police detected the offending primarily through an undercover operative conducting a controlled operation, during which a number of drug purchases were made directly from the applicant.

The District Court sentenced the applicant to an aggregate term of 9 years and 9 months imprisonment, with a non-parole period of 7 years, 3 months and 23 days. Three further offences (including commercial quantity cannabis supply, possession of a prohibited drug, and recklessly dealing with proceeds of crime) were taken into account on a Form 1 document in connection with the principal drug supply offence.

The applicant filed an out-of-time application for leave to appeal against sentence. While no explanation was provided for approximately 18 months of the delay, the Crown did not oppose an extension of time, and the Court granted it.

  • Whether the sentencing judge erred in assessing the objective seriousness of the principal drug supply offences, including by reference to an incorrect prescribed quantity and an incorrect number of drugs found in the applicant's possession at the time of arrest
  • Whether the sentencing judge erred in her treatment of the Form 1 offences under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in her assessment of the applicant's low intellectual functioning
  • Whether a parity issue arose by reference to a purported co-offender
  • Whether the sentence was manifestly excessive

Decision

The Court allowed the appeal on Ground 2, finding two factual errors in the sentencing judge's assessment of objective seriousness. First, when assessing one of the methylamphetamine supply offences, the sentencing judge compared the quantity involved against a prescribed "large commercial quantity" that had since been halved. The reference was therefore misleading, and the comparison overstated the relative seriousness of the offence. Second, the sentencing judge recorded that four different drugs were found in the applicant's possession for the purpose of supply at the time of arrest, when in fact there were only two.

The remaining grounds were dismissed. On Ground 1, the Court found that the sentencing judge had expressly addressed the Form 1 offences and the submissions on appeal overlooked those explicit statements. On Ground 3, the conclusions reached about the applicant's low level of intellectual functioning were open to the sentencing judge on the evidence. On Ground 4, no parity issue arose because the purported co-offender had not been sentenced at the time the applicant was sentenced. The Court further noted that parity would not arise on re-sentence if the purported co-offender was not in fact engaged in the same criminal enterprise. On Ground 5, the assertion of manifest excess was not substantiated, as the applicant relied on flawed or outdated sentencing statistics and purportedly comparative cases.

Having identified error, the Court re-exercised the sentencing discretion. The Court noted that the applicant had believed he was supplying amphetamine throughout, and that some supplies turned out to be methylamphetamine without his knowledge, resulting in separate charges being laid. Viewed in totality, the overall criminality would have been more serious had it all been characterised as a single amphetamine supply. Partial accumulation of the individual sentences was appropriate to reflect the totality of the offending. The Court also declined to find special circumstances warranting a reduction in the non-parole period proportion, concluding that the matters relied upon were not over and above those already factored into the overall sentence.

Orders Made

  • Time for filing the Notice of Application for Leave to Appeal extended to 30 April 2019.
  • Leave to appeal granted and appeal allowed.
  • Sentences imposed in the District Court on 19 August 2016 quashed and replaced with an aggregate sentence of 8 years and 9 months imprisonment, with a non-parole period of 6 years and 6 months, dating from 10 December 2014. The applicant became eligible for release on parole on 9 June 2021.

Key Takeaways

  • A sentencing judge's reliance on an incorrect statutory quantity threshold when comparing the seriousness of a drug supply offence constitutes an error in the assessment of objective seriousness capable of vitiating the sentence.
  • Factual inaccuracies in the sentencing remarks, including a misstatement about the number of drugs found in an offender's possession at arrest, can independently ground a successful appeal even where the errors appear peripheral.
  • No parity issue arises where the putative co-offender has not been sentenced at the time the offender is sentenced. The Court of Criminal Appeal also confirmed that parity will not arise on re-sentence if the other person was not actually engaged in the same criminal enterprise.
  • In dismissing the manifest excess ground, the Court confirmed that unsubstantiated comparisons with flawed or outdated sentencing statistics and selective "comparative cases" will not establish manifest excess.
  • Under the re-sentencing exercise, the court took into account that the applicant's mistaken belief as to the identity of the drug he was supplying led to separate charges with higher penalties than a single aggregate charge would have attracted, treating this as relevant to the degree of partial accumulation required to reflect overall criminality.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25, 25(2), 29, 36Y(1)(a), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 3A, 21A(3)(g), 21A(3)(h), 21A(3)(i), 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), ss 166, 268, Sch 1, Table 1, cl 8
- Crimes Act 1900 (NSW), s 193B(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Henderson v R [2012] NSWCCA 65
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Fidow [2004] NSWCCA 172
- Why v R [2017] NSWCCA 101