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Court of Criminal Appeal 18 March 2019

Grogan v R

[2019] NSWCCA 51

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PAROLE PERIOD OF 10 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Grogan v R [2019] NSWCCA 51
Court: Court of Criminal Appeal (NSW)
Date: 18 March 2019
Judge(s): Gleeson JA, Harrison J, Davies J

Background

The appellant pleaded guilty in the Local Court to three serious drug offences and was committed to the District Court for sentencing. The offences arose from his involvement in a sophisticated methylamphetamine manufacturing and supply syndicate operating across multiple Sydney and Central Coast properties between 2013 and 2013. He lived as caretaker at the syndicate's clandestine laboratory in Ourimbah and participated in manufacturing, purchasing equipment, collecting precursors, and delivering drugs and proceeds.

On arrest in December 2013, police found the appellant asleep at the laboratory premises. They seized over 27 kilograms of methylamphetamine oil, hundreds of kilograms of precursor chemicals, and laboratory equipment. DNA and fingerprint evidence linked the appellant directly to the manufacturing process. A separate search in November 2013 had already recovered nearly $1.2 million in cash connected to the supply operation.

The District Court sentenced the appellant to an aggregate term of 14 years imprisonment with a non-parole period of 10 years, commencing 23 December 2013. He sought leave to appeal to the Court of Criminal Appeal, arguing the aggregate sentence was excessive.

  • Whether the sentencing judge misapplied the totality principle in constructing the aggregate sentence
  • Whether the treatment of the proceeds of crime offence resulted in impermissible double punishment
  • Whether the aggregate sentence of 14 years was manifestly excessive

Decision

The Court of Criminal Appeal rejected all three grounds and dismissed the appeal. On the totality and double punishment grounds, Harrison J (with Gleeson JA and Davies J agreeing) found that the sentencing judge had correctly identified all three offences as involving discrete criminality. The manufacture offence related to drugs found at the premises in December 2013, while the supply offence covered a separate period of drug distribution. The proceeds of crime offence, though connected to both, related to a distinct act on a single date in November 2013.

On the totality ground specifically, the Court found that the overall accumulation of 3.5 years across three offences was well within the sentencing judge's discretion. The Court noted that the proceeds of crime offence, while closely related to the other two, was nonetheless capable of discrete identification and warranted some accumulation. The argument that the judge had simply added a layer of punishment for the proceeds of crime on top of sentences that already reflected the same conduct was not made out on the facts.

The manifest excess ground was treated as essentially a restatement of the totality argument. Because the appellant did not challenge any of the individual indicative sentences, and no appealable error (in the sense recognised in House v R) was identified in the judge's exercise of discretion, the contention reduced to a bare assertion that the total accumulation was unreasonable. The Court held that it is insufficient to demonstrate that another tribunal might have reached a different result; the appellant was required to show the judge could not reasonably have arrived at the sentence imposed. That threshold was not met.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court applying the totality principle is not required to avoid all accumulation where separate offences involve overlapping conduct; some accumulation is appropriate where each offence involves discrete criminality.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an appellant who does not challenge individual indicative sentences faces a high bar in arguing that the aggregate total is unreasonable.
  • The standard for overturning a sentence on the ground of manifest excess requires showing that the sentencing judge could not reasonably have arrived at the result, not merely that a different outcome was open.
  • Where a proceeds of crime offence is closely connected to drug manufacturing and supply offences, a sentencing judge may treat it as requiring only modest accumulation rather than significant additional time, without thereby committing a House v R error.
  • No error arose from the judge's characterisation of the proceeds of crime offence as an act integral to the supply and manufacture, provided the judge also recognised it as a separately identifiable offence warranting some degree of accumulation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)

Cases
- Brent Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
- Kwok v R [2018] NSWCCA 200
- Pannowitz v R [2016] NSWCCA 13
- R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Soames v R [2014] NSWCCA 158
- House v R (implied by reference to "House v R error" in judgment text)