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Court of Criminal Appeal 10 May 2019

Yu v R

[2019] NSWCCA 96

Drugs
CRIMINAL LAW SENTENCE APPEAL GROUNDS OF APPEAL NOT MADE OUT

Citation: Yu v R [2019] NSWCCA 96
Court: Court of Criminal Appeal, New South Wales
Date: 10 May 2019
Judge(s): Hoeben CJ at CL; Davies J; Fagan J

Background

The applicant pleaded guilty in the Local Court to one count of cultivating a prohibited plant in excess of the applicable commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). Two additional matters were taken into account on a Form 1: a further cultivation charge relating to an earlier premises, and a deemed supply charge arising from cannabis found at the principal offence location.

The facts underlying the principal offence concerned a Dundas Valley property where the applicant was the sole occupant and tenant. All three bedrooms and a living room had been converted into a sophisticated hydroponic cannabis operation. Police found 68 cannabis plants along with over 8 kilograms of cannabis (in cryovac bags and garbage bags), with an estimated street value of $114,000. The applicant admitted to tending the plants, paying rent and utilities, and harvesting the cannabis.

On 22 September 2017, Judge Colefax SC sentenced the applicant to 4 years and 6 months' imprisonment with a non-parole period of 3 years and 4 months, applying a 25 per cent discount for an early guilty plea from a starting point of 6.5 years. The applicant sought leave to appeal, arguing errors in the sentencing judge's factual findings and contending the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding the applicant lacked remorse at the time of sentencing
  • Whether the sentencing judge erred in finding the applicant sought to minimise his criminality
  • Whether the sentencing judge erred in concluding the applicant had only guarded prospects of rehabilitation
  • Whether the sentencing judge failed to take into account the applicant's deprived upbringing and limited education
  • Whether the sentencing judge erred in not finding special circumstances justifying an adjustment to the ratio between the head sentence and the non-parole period
  • Whether the cumulative effect of the above errors rendered the sentence manifestly excessive

Decision

On the factual grounds (Grounds 1 to 3), the Court found that the sentencing judge's findings regarding lack of remorse, minimisation of criminality, and guarded rehabilitation prospects were all reasonably open on the evidence. The applicant had not given evidence at sentencing and relied on a psychologist's report. The sentencing judge was entitled to draw adverse inferences from statements in that report suggesting the applicant distanced himself from full responsibility for his offending.

On the deprived upbringing ground (Ground 4), the Court acknowledged the applicant's difficult personal history, including his family's flight from Vietnam, a decade in a Hong Kong refugee camp, and limited education. However, the sentencing judge had explicitly noted these circumstances. The Court confirmed the principle from Bugmy v The Queen (2013) 249 CLR 571 that a deprived background remains relevant at sentencing regardless of prior criminal history, but found no error in the way the sentencing judge had addressed it.

On special circumstances (Ground 5), the Court found the sentencing judge was not required to make such a finding. The ratio between the non-parole period and the head sentence (3 years 4 months out of 4 years 6 months) was not so out of step as to constitute error, particularly given the applicant's significant prior drug conviction.

On manifest excess (Ground 6), the Court held the sentence was neither unreasonable nor plainly unjust, applying the standard from Dinsdale v The Queen (2000) 202 CLR 321 and Markarian v The Queen (2005) 228 CLR 357. The Court noted that the existence of a prior serious drug supply conviction, the applicant's central operational role, the quantity of drugs, and the two Form 1 matters all supported the sentence imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's factual findings will not be disturbed on appeal where they are reasonably open on the evidence, even if the applicant did not give evidence and relied solely on a psychologist's report.
  • Under the principle confirmed in Bugmy v The Queen, a deprived upbringing and background hardship remain relevant sentencing considerations regardless of prior criminal history, but their weight is a matter for the sentencing judge's discretion.
  • No single correct sentence exists in criminal sentencing: the Court of Criminal Appeal will only intervene where a sentence is unreasonable or plainly unjust, not merely because it might have exercised the discretion differently.
  • A prior serious drug conviction can properly limit the leniency available to a repeat offender, even where significant subjective mitigating factors are present.
  • In dismissing all grounds, the Court confirmed that the combination of the applicant's operational role, the drug quantity and value, and the Form 1 matters collectively supported the sentence of 4 years 6 months with a 3 year 4 month non-parole period.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Tak Fat Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- AB v R [2014] NSWCCA 31
- El-Afchal v R [2015] NSWCCA 112
- Majid v R [2010] NSWCCA 121
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Wong [2018] NSWCCA 20
- Regina v Cramp [2004] NSWCCA 264
- Regina v Fidow [2004] NSWCCA 172
- R v M.A.K., R v M.S.K. [2006] NSWCCA 381
- R v Sutton [2004] NSWCCA 225
- Trad v R [2009] NSWCCA 56
- Windle v R [2011] NSWCCA 277