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Court of Criminal Appeal 25 November 2020

Hadler v R

[2020] NSWCCA 305

Drugs
CRIMINAL LAW SENTENCE APPEAL DISCOUNT ALLOWED FOR PLEA OF GUILTY NEED TO RE SENTENCE APPEAL DISMISSED.

Citation: Hadler v R [2020] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 25 November 2020
Judges: Hoeben CJ at CL; Price J; Fagan J

Background

The appellant pleaded guilty to three drug supply offences: supplying a large commercial quantity of cocaine (2.5471 kg), supplying a large commercial quantity of methylamphetamine (996.4 g), and supplying an indictable quantity of cannabis (9.195 kg). A money-laundering charge was taken into account on a Form 1, and four possession charges were dealt with by way of a section 166 Certificate. The offending arose from a joint operation with a co-offender, detected after a police strike force investigation begun in May 2015.

The sentencing judge in the District Court imposed an aggregate term of 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months, commencing 19 August 2016. The judge found the appellant entitled to the full 25 per cent discount for the utilitarian value of an early guilty plea, and found special circumstances based on the appellant's first time in custody, minor criminal record, acceptance of responsibility, and prospects for community treatment on release.

The appellant sought leave to appeal on the ground that the sentencing judge had applied the guilty plea discount to the aggregate sentence rather than to each indicative sentence individually, which the appellant contended was a legal error that should produce a less severe sentence.

  • Whether the sentencing judge erred by applying the guilty plea discount to the aggregate sentence rather than to the indicative sentences for each individual offence.
  • Whether that error, if established, warranted the imposition of a less severe sentence on appeal.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had indeed made an error in method: the guilty plea discount should have been applied to each indicative sentence separately, not to the aggregate sentence as a whole. This ground of appeal was therefore established.

However, the court did not stop at identifying the error. Under the applicable principle drawn from Kentwell v The Queen (2014) 252 CLR 601, the court must re-sentence the appellant when an error is identified, but it will only impose a less severe sentence if one is warranted in law. The court proceeded to consider whether the sentences actually imposed were appropriate having regard to all relevant factors.

The court emphasised the importance of general deterrence and community protection in sentencing for large commercial drug supply, citing the maximum penalty of life imprisonment and the standard non-parole period of 15 years as indicators of parliamentary intent. It noted the very substantial quantities and values involved, the appellant's meaningful role in the enterprise, and the overall gravity of the offending.

Taking all these matters into account, the court concluded that the sentences actually imposed were not more severe than warranted. Despite the identified error in method, a less severe sentence was not warranted in law, and the appeal was dismissed.

Orders Made

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

Key Takeaways

  • Applying a guilty plea discount to an aggregate sentence rather than to each indicative sentence individually constitutes a legal error, even where the overall sentence may otherwise be appropriate.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically produce a reduced sentence: the court must re-sentence and will only impose a lesser sentence if one is warranted in law (following Kentwell v The Queen (2014) 252 CLR 601).
  • General deterrence and protection of the community carry particular weight in sentencing for large commercial drug supply, and will generally outweigh subjective mitigating circumstances in fixing the total sentence.
  • The standard non-parole period of 15 years and the life imprisonment maximum for large commercial drug supply offences function as legislative guideposts indicating the seriousness with which Parliament regards such offending.
  • No lesser sentence was warranted where the drugs involved were of high purity, substantial quantity and significant street value, and the appellant's involvement was assessed as between a low and middle level of responsibility in a drug supply network.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Parris v R [2013] NSWCCA 5
- Regina v Shi [2004] NSWCCA 135
- Cullen v R [2014] NSWCCA 162
- Berryman v R [2017] NSWCCA 297
- Elsaj v R [2017] NSWCCA 124
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
- Weiss v R [2020] NSWCCA 188