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Court of Criminal Appeal 4 June 2020

Prince v R

[2020] NSWCCA 110

DrugsPublic order & justice offences
CRIME APPEAL SENTENCING DRUG OFFENCES SUPPLY PROHIBITED DRUG ON ONGOING BASIS APPEAL

Citation: Prince v R [2020] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 4 June 2020
Judges: Bell P, Davies J, Button J

Background

The appellant was a leader of a small cocaine supply syndicate operating in Sydney during mid-to-late 2017. She pleaded guilty to two principal charges: supplying a prohibited drug on an ongoing basis (under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW)), and knowingly directing the activities of a criminal group (under s 93T(4A) of the Crimes Act 1900 (NSW)). Each charge carried a Form 1 document listing further related offences, including an additional ongoing supply charge, a discrete supply of 47.44 grams of cocaine, and knowingly dealing with $44,430 in proceeds of crime. Six driving-while-disqualified offences were also dealt with by way of concurrent sentences.

The appellant directed syndicate operations: she managed the "supplier phone" through which customers ordered cocaine, instructed other members on bagging, drove to supply customers directly on multiple occasions, and controlled who participated in the drug running. At the time of her arrest, police found cocaine, electronic scales, mobile phones, and the cash proceeds at her home.

In April 2019, Acting Judge Delaney of the District Court imposed an aggregate sentence of five years and six months, with a non-parole period of three years and two months. The appellant sought leave to appeal on six grounds, contending various errors in the sentencing exercise.

  • Whether the sentencing judge erroneously found that the ongoing supply offence was aggravated by being committed for financial reward.
  • Whether the sentencing judge erred in assessing the objective seriousness of Count 2 (directing a criminal group), including by conflating the facts of Count 1 with it.
  • Whether the sentencing judge failed to take into account positive features of the appellant's subjective circumstances, including her history of abuse, diagnosed mental health conditions, and remorse.
  • Whether the sentencing judge failed to make findings on the likelihood of reoffending and prospects of rehabilitation.
  • Whether the sentence gave rise to a justifiable sense of grievance by comparison with the sentence imposed on a co-offender (parity).
  • Whether the aggregate sentence was manifestly excessive.

Decision

Financial reward aggravation: The Court of Criminal Appeal found no error in the sentencing judge's approach to financial reward. The ongoing supply offence under s 25A carries a higher maximum penalty precisely because it involves commercial dealing, and the judge's treatment of financial gain as a relevant circumstance was not shown to have produced a sentence outside the legitimate range.

Objective seriousness and subjective circumstances: The Court rejected the argument that the judge conflated the facts of Count 1 and Count 2. It also found that the sentencing judge had adequately addressed the appellant's subjective circumstances. The psychological evidence of post-traumatic stress disorder, persistent depressive disorder, and substance use disorder (in remission) had been considered, as had her expressed remorse and difficult personal history including childhood sexual abuse and a prolonged abusive relationship.

Rehabilitation and reoffending: The Court confirmed that rehabilitation and the likelihood of reoffending are closely related considerations. A finding on one is often implicitly a finding on the other. The sentencing judge's remarks, read as a whole, were sufficient to satisfy the requirement that the question of rehabilitation be addressed in substance.

Parity: The co-offender, Sharna-Marie Kay, had received a lower sentence that was later reduced further on appeal. However, the Court noted that Kay had been found to have played a minimal role in the drug supply and had been charged only with drug supply offences, not with directing a criminal group. Given those significant differences in culpability and the charges faced, no justifiable sense of grievance arose from the disparity in sentences.

Manifest excess: The Court rejected reliance on bare sentencing statistics, noting that the submissions did not examine the underlying facts of the cases those statistics reflected, a deficiency previously identified in comparable appeals. The Court noted that both ongoing supply offences exceeded the statutory minimum number of supplies, that the appellant had benefitted from a further ongoing supply charge being placed on a Form 1 rather than charged separately, and that the non-parole period had already been generously reduced by the finding of special circumstances. While the aggregate sentence was described as stern, it was not outside the legitimate range of sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to address rehabilitation and the likelihood of reoffending in separate, explicit findings; addressing one sufficiently in context can satisfy the obligation with respect to both, provided the judgment addresses the question in substance.
  • Parity between co-offenders requires comparison of closely comparable circumstances; where a co-offender was found to have a minimal role and faced narrower charges, the difference in sentence will not ordinarily give rise to a justifiable sense of grievance.
  • Reliance on bare sentencing statistics, without an examination of the underlying facts of the cases represented, will not assist a manifest excess argument; the Court of Criminal Appeal again confirmed this limitation, consistent with its approach in Hordern v R and Hayek v R.
  • Under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW), each ongoing supply offence must involve at least the statutory minimum number of individual supplies; where the actual number of supplies substantially exceeds that minimum, this is a relevant factor in assessing objective seriousness.
  • In dismissing the manifest excess ground, the Court considered the cumulative benefit to the appellant from the Form 1 procedure (which kept an additional serious charge off the indictment), concurrent driving sentences fully subsumed into the aggregate, and a generous reduction of the non-parole period for special circumstances.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25A (supply prohibited drug on an ongoing basis)
- Crimes Act 1900 (NSW), s 93T(4A) (knowingly directing a criminal group)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 93T

Cases:
- Cahyadi v R (2007) 168 A Crim R 41
- Hordern v R [2019] NSWCCA 210
- Kay v R [2019] NSWCCA 275
- Masters v R [2019] NSWCCA 233
- Mulato v R [2006] NSWCCA 282
- Newman v R [2018] NSWCCA 208
- Obeid v R [2017] NSWCCA 221
- Skocic v R [2014] NSWCCA 225
- Zuffo v R [2017] NSWCCA 187
- Hayek v R [2016] NSWCCA 126