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Court of Criminal Appeal 22 March 2019

Yondjo v R

[2019] NSWCCA 57

DrugsFraud & dishonestyTraffic & driving
CRIMINAL LAW UNREPRESENTED ACCUSED WHETHER SENTENCE MANIFESTLY EXCESSIVE PROPOSED GROUNDS DEVOID OF MERIT LEAVE TO APPEAL REFUSED

Citation: Yondjo v R [2019] NSWCCA 57
Court: Court of Criminal Appeal, NSW
Date: 22 March 2019
Judges: Hoeben CJ at CL, Davies J, Button J

Background

The applicant pleaded guilty in the District Court to four offences arising from two separate incidents in June 2015: supplying methylamphetamine on two occasions (5.01 grams and 95.7 grams respectively), driving recklessly to evade police, and recklessly dealing with proceeds of crime. A further six related offences, including possessing prohibited drugs, driving while suspended, and resisting officers, were also dealt with by way of certificate.

The sentencing judge allowed a combined 30% discount for pleas of guilty and another factor on the indictment counts, and a 40% discount on the related offences. An aggregate sentence of six years imprisonment with a non-parole period of three years and six months was imposed, backdated to 19 April 2016.

The applicant, appearing unrepresented before the Court of Criminal Appeal, sought leave to appeal against that sentence on five grounds.

  • Whether the sentence was manifestly excessive by reference to statistics and comparable cases
  • Whether the sentencing judge omitted relevant evidence or allowed extraneous material to influence the outcome
  • Whether the sentencing judge erred in treating the applicant's criminal record as an aggravating factor
  • Whether a miscarriage of justice arose from allegedly incompetent legal representation in the Local Court proceedings
  • Whether the sentencing judge assessed objective seriousness incorrectly, leading to an insufficient discount for the utilitarian value of the guilty pleas

Decision

Button J, with whom Hoeben CJ at CL and Davies J agreed, considered all five grounds devoid of merit and refused leave to appeal. Hoeben CJ at CL went further, characterising the aggregate sentence as lenient given the circumstances rather than excessive.

On the grounds relating to manifest excess and objective seriousness, the Court found the sentencing judge's findings were soundly open. The quantity and purity of the drugs, the cash found, and the scales all supported a finding of drug trafficking to a substantial degree. The police pursuit offence was properly characterised as a serious example of that type of offending, aggravated by the applicant's unlicensed status. The proceeds of crime finding, placing the offending at the lower but not lowest end of seriousness, was described as unimpeachable.

On the criminal record ground, no error in principle was identified in the sentencing judge's treatment of that material. The Court noted the applicant had been engaged in drug dealing for financial gain at a high level while on parole, on bail, and following a serious prior conviction, none of which was disputed.

On the ground of incompetent prior representation, the Court found no basis to conclude that the absence of guilty pleas in the Local Court amounted to a miscarriage of justice. The discounts applied in the District Court were soundly open on the pleas that had in fact been entered there.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • In refusing leave, the Court of Criminal Appeal confirmed that findings of objective seriousness for drug supply offences are properly supported by evidence of drug quantity, purity, cash seized, and the presence of weighing equipment.
  • A sentencing judge's characterisation of a police pursuit offence as serious is open where the driving was reckless and the offender was unlicensed at the time.
  • No error arose from treating a significant criminal record as an aggravating circumstance, particularly where the offending occurred while the applicant was on parole and on bail.
  • Allegations of incompetent legal representation in prior proceedings do not automatically establish a miscarriage of justice; the Court examined the substance of the complaint and found none established here.
  • Where all proposed grounds of appeal are plainly without merit, the Court of Criminal Appeal may deal with them briefly and refuse leave without extensive analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 51B(1) (police pursuit offence) and s 193B(3) (recklessly dealing with proceeds of crime)
- Criminal Procedure Act 1986 (NSW), s 166 (certificates for related offences)
- Drug Misuse and Trafficking Act 1985 (NSW) (supply of prohibited drug offences)

Cases cited: No specific cases were cited in the judgment.