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Court of Criminal Appeal 1 March 2019

Semple v R

[2019] NSWCCA 40

Drugs
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 2 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Semple v R [2019] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 1 March 2019
Judge(s): Hoeben CJ at CL (with Price J and Adamson J agreeing)

Background

The self-represented appellant had pleaded guilty in the District Court to two counts of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences related to methylamphetamine and 1,4-butanediol found during a search warrant executed at his premises in November 2016. Two further matters (an additional supply offence and a possession of ketamine offence) were taken into account on a Form 1.

Importantly, the offending occurred while the appellant was on parole from an earlier series of drug supply offences, having been released only about seven months before police executed the search warrant. Cash totalling over $11,000, drug paraphernalia, and four mobile phones were also located at the premises.

The sentencing judge in the District Court imposed an aggregate sentence of four years imprisonment with a non-parole period of two years. The indicative sentences were two years for Count 1 and four years for Count 2. The sentencing judge allowed a 20 per cent discount for the guilty plea, found special circumstances, and assessed the objective seriousness of the offending as slightly below the midrange.

  • Whether the aggregate sentence was manifestly excessive, with the appellant comparing his sentence to a similar case in the District Court
  • Whether the appellant was denied procedural fairness in connection with the plea discount, where the Crown had earlier indicated a 25 per cent discount was appropriate but the sentencing judge ultimately allowed only 20 per cent

Decision

Manifest excess: The Court of Criminal Appeal (Hoeben CJ at CL, with Price and Adamson JJ agreeing) dismissed the argument that the sentence was manifestly excessive. The Court observed that, because the appellant was self-represented, some latitude was appropriate, including treating the appeal as directed at the aggregate sentence rather than just the indicative sentence for Count 2. The sentencing judge had appropriately weighed the objective seriousness of the offending, the appellant's criminal history, the aggravating feature of reoffending while on parole, and the relevant subjective matters, including a psychologist's report, a major depressive episode, and the appellant's onerous custodial conditions following a sexual assault in custody.

Procedural fairness and plea discount: The Court rejected the argument that reducing the discount from 25 to 20 per cent constituted procedural unfairness. The sentencing judge had foreshadowed the 20 per cent discount to the appellant's counsel before imposing sentence, and counsel did not object. The Court confirmed that the timing of a plea is the primary consideration in determining its utilitarian value. The plea was not entered until the day after the matter had been listed for trial, making a 20 per cent discount generous in the circumstances. The Crown's earlier indication of 25 per cent was not binding on the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A Crown submission as to the appropriate plea discount is not binding on the sentencing judge; the judge retains an independent obligation to fix the discount according to the utilitarian value of the plea.
  • The timing of a guilty plea is the primary consideration in determining its utilitarian value, and a late plea will necessarily carry less weight than an early one, even where negotiations with the Crown preceded it.
  • Where a sentencing judge foreshadows a departure from an earlier indication and defence counsel does not object, no procedural unfairness will ordinarily arise, particularly where the accused is legally represented.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that reoffending on parole and shortly after release from custody is a significantly aggravating factor that engages considerations of both specific and general deterrence, as well as community protection.
  • No error was established in the sentencing judge's treatment of the psychologist's report; explaining conduct and reducing moral culpability under the De La Rosa and Engert principles are distinct inquiries.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes Act 1900 (NSW), ss 112(1), 319

Cases:
- Bland v R [2014] NSWCCA 82
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DL v The Queen [2018] HCA 32; 92 ALJR 764
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Engert (1995) 84 A Crim R 67
- R v Robert Borkowski [2009] NSWCCA 102
- R v Tucakavoic (District Court NSW, Williams SC DCJ, 25 January 2017, unreported)
- Upadhyaya v R [2017] NSWCCA 162
- Zhao v R [2016] NSWCCA 179