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Court of Criminal Appeal 29 April 2019

Thomas v R

[2019] NSWCCA 88

Drugs
CRIME APPEAL AGAINST SENTENCE SENTENCE

Citation: Thomas v R [2019] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 29 April 2019
Judges: Bathurst CJ, Price J, Ierace J

Background

The appellant pleaded guilty in the Local Court to supplying a commercial quantity of cocaine (987.3 grams, nearly four times the commercial threshold of 250 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He adhered to his plea on sentence in the District Court, where he was sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months, following a 25% utilitarian discount for the guilty plea.

The facts involved the appellant delivering a bag containing 83 individually wrapped cocaine packages to a co-accused at a Pyrmont street corner. Police observed the exchange, stopped the co-accused's vehicle, and recovered the bag. DNA matching the appellant was found on three drug packages, on a towel inside the bag, and on the bag's pull strings. Five of his fingerprints were found on the outer plastic packaging.

In the sentencing proceedings, the appellant sought to tender an affidavit containing a letter to the judge claiming he had not known the bag contained drugs. When the Crown required him for cross-examination, the affidavit was withdrawn. His counsel later indicated the letter should be treated as unsworn material given some weight. On appeal, counsel for the appellant informed the Court of Criminal Appeal that the appellant had in fact known the bag contained cocaine by the time he delivered it.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence as being at, rather than below, the mid-range.
  • Whether the sentencing judge erred in declining to take the appellant's expressions of remorse into account under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether, if error was established, the sentence was manifestly excessive and re-sentencing was warranted.

Decision

On the remorse ground, the Court of Criminal Appeal found no error. The letter containing expressions of remorse was not properly before the sentencing judge, having been withdrawn when the Crown sought to cross-examine the appellant. Its account of the appellant not knowing the bag contained drugs was also directly inconsistent with the guilty plea. The sentencing judge was entitled to reject the unsworn remorse material in those circumstances.

On objective seriousness, the Court identified an error. Price J found the sentencing judge had assessed the offence as sitting at, rather than below, the mid-range of objective seriousness. The relevant considerations supporting a below-mid-range assessment included: the appellant's role as a single-link courier of limited duration, the absence of any identified financial gain, and the lack of any indicia of supply found at his hotel room. The quantity of cocaine, while well above the commercial threshold, did not by itself place the offence at mid-range.

The Court confirmed that finding a specific error triggered the duty to re-sentence, in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601. Price J adopted the sentencing judge's findings on all subjective factors and the utilitarian discount, departing only on objective seriousness.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 25 May 2018 quashed.
  • Appellant re-sentenced to 5 years imprisonment with a non-parole period of 3 years 2 months, commencing 22 December 2016 and expiring 21 February 2020, with a balance of term of 1 year 10 months expiring 21 December 2021.
  • Earliest parole eligibility date: 21 February 2020.

Key Takeaways

  • A single identified error in objective seriousness assessment is sufficient to enliven the Court of Criminal Appeal's duty to re-sentence, even where all other sentencing findings are upheld.
  • Unsworn evidence of remorse that is inconsistent with the offender's plea of guilty carries very little weight, and a sentencing court is entitled to decline to act on it.
  • Where an offender's counsel withdraws an affidavit to avoid cross-examination, the sentencing court is not obliged to treat the affidavit's contents as reliable or credible evidence.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), a quantity substantially above the commercial threshold does not automatically place an offence at the mid-range of objective seriousness; the offender's role, duration of involvement, and financial benefit remain relevant considerations.
  • Findings on subjective case and guilty plea discounts made at first instance may be adopted wholesale on re-sentence where no error in those findings is identified.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- Lees v R [2019] NSWCCA 65
- Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
- AB v R [2013] NSWCCA 160; (2013) 233 A Crim R 205