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Court of Criminal Appeal 23 December 2019

Diri v R

[2019] NSWCCA 319

DrugsTraffic & driving
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE NO ERROR SHOWN ERROR DEMONSTRATED

Citation: Diri v R [2019] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 23 December 2019
Judges: Macfarlan JA, Davies J, Hidden AJ

Background

The applicant pleaded guilty in the Local Court to two drug supply offences: a single supply of 4.05 grams of methylamphetamine and an ongoing supply of methylamphetamine. A further ongoing supply charge was taken into account on a Form 1. He also pleaded guilty to a driving-while-disqualified offence. The offending arose from a police operation targeting drug supply in the Blacktown area, during which the applicant made nine separate supplies to undercover police operatives between July and November 2016. Seven of those supplies involved methylamphetamine; two involved inert substances (bath salts).

Judge Craigie SC sentenced the applicant in the District Court on 12 April 2019 to an aggregate term of two years and nine months' imprisonment, commencing 15 July 2018, with a non-parole period of one year and nine months. The sentence was backdated to reflect time the applicant had spent in quasi-custodial conditions. The applicant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by assessing the objective seriousness of the drug offences collectively rather than individually, and whether that collective assessment was open on the facts.
  • Whether the sentencing judge erred in fixing the commencement date of the sentence, given his stated intention to backdate by nine months.

Decision

Ground 1: Objective seriousness assessed collectively

The applicant contended that the sentencing judge should have assessed each offence's objective seriousness individually, that a finding of "persistent offending over a four-month period" was not supported by the evidence, and that insufficient weight was given to the two bath salts transactions when assessing the ongoing supply charges. The Court of Criminal Appeal rejected these arguments. Both parties had made submissions on the objective seriousness of the offending collectively, and the sentencing judge's reasons addressed the relevant matters. No error was established in the collective approach in the circumstances of this case.

The Court also found that the characterisation of the offending as around the mid-range of seriousness was open to the sentencing judge, having regard to the totality of the conduct. The challenge to the bath salts supplies was similarly dismissed: the sentencing judge was aware of and addressed the nature of those transactions within the overall assessment.

Ground 2: Commencement date

The sentencing judge expressly stated he would backdate the sentence by nine months from the date of sentencing (12 April 2019), which would place the commencement date at 12 July 2018. However, the sentence was recorded as commencing 15 July 2018, a discrepancy of three days. The Crown ultimately accepted at the appeal hearing that an error had been made. The Court characterised this as a purely administrative error involving no element of discretion, following the approach in Lehn v R and Gordon v R. Because the error was administrative rather than a matter of sentencing discretion, it was unnecessary to conduct a full resentencing exercise as would ordinarily be required by Kentwell v The Queen.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed on Ground 2 (commencement date).
  • Sentence quashed and replaced with an aggregate term of two years and nine months' imprisonment commencing 12 July 2018 and expiring 11 April 2021, with a non-parole period of one year and nine months expiring 11 April 2020 (eligible for parole from 11 April 2020).
  • Appeal otherwise dismissed (Ground 1 not upheld).

Key Takeaways

  • No error was established in a sentencing judge assessing the objective seriousness of multiple related drug supply offences collectively, where both parties had framed their submissions on that basis and the judge addressed the relevant individual factors within that collective analysis.
  • A finding of "persistent offending" across a four-month period was open where nine separate transactions to undercover operatives were established on agreed facts.
  • Where some transactions in an ongoing supply offence involved inert substances rather than prohibited drugs, that circumstance does not automatically reduce the assessed objective seriousness, provided the sentencing court is aware of and addresses it within the overall assessment.
  • Administrative errors in recording a commencement date, where the discrepancy simply reflects a miscalculation of a backdating period the judge had already decided upon, can be corrected without engaging in a full resentencing exercise under the Kentwell principles.
  • In dismissing Ground 1 while allowing Ground 2, the Court of Criminal Appeal confirmed that the mechanism for correcting a purely clerical or arithmetic sentencing error is narrow and does not reopen the broader sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- Daher v R [2018] NSWCCA 287
- Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
- Gordon v R [2018] NSWCCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Lyons v R [2017] NSWCCA 204
- Mulato v R [2006] NSWCCA 282
- R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63
- R v Kijurina [2017] NSWCCA 117
- R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
- R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460