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Court of Criminal Appeal 26 October 2020

See v R

[2020] NSWCCA 272

DrugsFraud & dishonestyFirearms & weapons
APPEAL SENTENCE APPEAL WHERE APPLICANT SENTENCED WITH CO OFFENDER DRUG OFFENCES PAROLE PERIODS

Citation: See v R [2020] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 26 October 2020
Judges: Hoeben CJ at CL, Harrison J, Bellew J

Background

The appellant pleaded guilty in the Sydney District Court to a range of serious drug supply offences, weapons possession offences, and knowingly dealing with proceeds of crime. The offending centred on his involvement in a drug distribution network operating out of a Cabramatta apartment he shared with a co-offender (his brother-in-law). Police located significant quantities of methamphetamine, MDMA, cocaine, and heroin in the appellant's bedroom, along with nearly $28,000 in cash and three prohibited weapons.

The sentencing judge imposed an aggregate term of eight years' imprisonment commencing 14 February 2018, with an aggregate non-parole period of five years. The most serious individual count involved knowingly taking part in the supply of a large commercial quantity of MDMA, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The appellant sought leave to appeal against the sentence, raising four grounds that challenged the procedural handling of standard non-parole periods, the assessment of objective seriousness, and the overall length of the sentence.

  • Whether the sentencing judge breached s 45(1) of the Crimes (Sentencing Procedure) Act 1999 by failing to impose a separate non-parole period for individual counts carrying standard non-parole periods (Counts 6 and 7).
  • Whether the sentencing judge failed to comply with the requirements of s 54B of the Crimes (Sentencing Procedure) Act 1999 governing aggregate sentences.
  • Whether the sentencing judge erred in assessing the objective criminality reflected in the indicative sentences.
  • Whether the overall sentence was manifestly excessive.

Decision

Grounds 1(a) and 1(b): Non-parole period and aggregate sentencing procedure. The Court of Criminal Appeal found no appellable error in the sentencing judge's approach to the non-parole periods. When an aggregate sentence is imposed, the sentencing framework under the Crimes (Sentencing Procedure) Act 1999 permits the court to set a single aggregate non-parole period rather than individual ones for each count. The Court found the sentencing judge had properly complied with the relevant statutory provisions.

Ground 2: Objective seriousness. The Court rejected the contention that the indicative sentences failed to reflect the objective gravity of the offending. The quantities of drugs involved were substantially above the relevant thresholds for each category, the purity of the methamphetamine was high, and the appellant's role, though secondary to the co-offender and principal supplier, was an active and knowing one. He facilitated communications that kept the supply network functioning. The Court found the indicative sentences were consistent with this assessment.

Ground 3: Manifest excess. The Court was not satisfied that the aggregate sentence was unreasonable or plainly unjust. The sentencing judge had taken into account the appellant's subjective case, including his disadvantaged upbringing, history of physical abuse during childhood, significant drug dependency beginning in adolescence, limited employment history, and prospects for rehabilitation. His Honour found special circumstances, resulting in a three-year parole period. The Court found this was adequate to accommodate rehabilitation. The appellant's involvement was not peripheral and extended across multiple serious offences.

Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate non-parole period under the Crimes (Sentencing Procedure) Act 1999 can satisfy the requirements of ss 45 and 54B without separate non-parole periods being imposed for individual counts attracting standard non-parole periods.
  • A secondary or facilitative role in a drug supply network does not automatically reduce the objective seriousness of offending where the participation was active, knowing, and integral to the network's operation.
  • Where drug quantities substantially exceed the applicable threshold and drug purity is high, sentencing courts may treat those features as elevating the objective gravity of the offence above the mid-range.
  • Positive subjective factors, including a history of childhood abuse, long-standing drug dependency, and genuine rehabilitation efforts, can be given weight in sentencing drug offenders without necessarily reducing an aggregate term that reflects the cumulative seriousness of multiple serious offences.
  • No error was established merely because the sentencing judge did not expressly articulate consideration of each subjective factor; the aggregate sentence must be assessed as a whole against the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45, 54B, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
- Gal v R [2015] NSWCCA 242
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- R v Brown [2012] NSWCCA 199
- Tepania v R [2018] NSWCCA 247
- Trimarchi v R [2019] NSWCCA 189
- Yeung v R [2018] NSWCCA 52