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Court of Criminal Appeal 8 December 2020

SY v R

[2020] NSWCCA 320

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG MANUFACTURE AND SUPPLY POSSESSION OF FIREARMS LEAVE TO APPEAL GRANTED APPLICANT RESENTENCED

Citation: SY v R [2020] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 8 December 2020
Judges: Hoeben CJ at CL; Price J; Fagan J

Background

The applicant (whose name was anonymised because the proceedings involved assistance provided to authorities) pleaded guilty in the District Court to four offences arising from a drug manufacturing operation run out of a garage in western Sydney between May and August 2014. The offences comprised knowingly taking part in the manufacture of PMMA (para-methoxy methyl amphetamine) in a large commercial quantity, supplying PMMA in a large commercial quantity, and possessing two prohibited firearms. Three additional charges were taken into account on Form 1.

The prosecution case rested on substantial physical and forensic evidence. The applicant's DNA and fingerprints were found on numerous items in the laboratory, drug traces were found on his clothing and vehicle, and he had been observed attending the premises on 12 occasions during the operation. A co-accused had permitted the applicant to use the garage but had no meaningful forensic link to the laboratory.

Acting Judge Grogin sentenced the applicant in the District Court on 27 February 2019 to an aggregate term of 14 years with a non-parole period of 9 years and 6 months, commencing 1 June 2017. The applicant sought leave to appeal on five grounds.

  • Whether the sentencing judge erred in treating the applicant as a principal in the drug offences, rather than in a lesser role
  • Whether the sentencing judge erred in finding that the presence of firearms exacerbated the objective seriousness of the drug offences
  • Whether the sentencing judge erred in failing to assess the objective seriousness of the two firearm counts separately from one another
  • Whether the sentencing judge erred in his approach to "Exhibit G," relating to the surrender of additional firearms and any discount flowing from that assistance
  • Whether the commencement date of the aggregate sentence was incorrectly calculated, constituting a miscarriage of justice

Decision

On the question of principal liability, the Court found no error in the sentencing judge's assessment. The evidence overwhelmingly established that the applicant operated the laboratory himself. He was the only person with a forensic connection to the premises, he had attended on 12 occasions, and drug traces were found on his person and vehicle at the time of arrest. The co-accused's role was limited to permitting use of the garage.

The Court rejected the ground that firearms did not aggravate the drug offences. Firearms found at a drug production and supply facility are properly regarded as connected to the protection of that operation. The Court confirmed that their presence was a legitimate factor in assessing the seriousness of the drug charges.

On the firearm counts, the Court agreed with the applicant that the sentencing judge had not assessed counts 3 and 4 separately. It was an error to treat those two offences identically in terms of seriousness. Count 3 involved a submachine gun, which was the more serious weapon, and the Form 1 offence attached to count 4 involved a blank-firing pistol warranting a lesser contribution to the overall sentence. The Court also found that the sentencing judge had not applied any discount in respect of the applicant's surrender of additional firearms as assistance to authorities. The surrender warranted a 5% discount under section 23 of the Crimes (Sentencing Procedure) Act 1999, but the Court declined to extend that discount further in the absence of any intelligence assistance regarding the provenance of the weapons or any identification of prior holders.

On the commencement date, the Court accepted that a miscarriage had occurred. The correct commencement date, calculated by reference to 284 days before the revocation of the applicant's bail on 28 March 2018, was 17 June 2017, not 1 June 2017 as originally fixed. The overall sentence was reduced from 14 years to 13 years and 2 months, with a non-parole period of 8 years and 10 months, reflecting the 5% assistance discount applied in combination with the existing 15% guilty plea discount.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal upheld.
  • The aggregate sentence imposed by Grogin ADCJ on 27 February 2019 is quashed.
  • In substitution, the applicant is sentenced to an aggregate term of 13 years and 2 months commencing 17 June 2017 and expiring 16 August 2030, with a non-parole period of 8 years and 10 months expiring 16 April 2026.
  • The applicant is eligible for parole on 16 April 2026.

Key Takeaways

  • Forensic evidence connecting a sole offender to a drug laboratory, including DNA, fingerprints, and drug residue found on the person and vehicle, sufficiently established principal liability for the manufacturing operation.
  • Firearms found at a drug production facility may legitimately aggravate the objective seriousness of the drug offences, on the basis that such weapons serve a protective function for the operation.
  • Where an offender surrenders prohibited firearms to authorities, a discount under section 23 of the Crimes (Sentencing Procedure) Act 1999 is available, but its extent is limited where no intelligence assistance accompanies the surrender; the Court allowed 5% in this case.
  • Sentencing courts must assess co-existing firearm offences individually, even where the penalties appear similar, and must account for meaningful differences in weapon type and associated Form 1 charges.
  • An error in calculating the commencement date of an aggregate sentence, which resulted in the applicant receiving less credit for pre-sentence custody, constituted a miscarriage of justice warranting appellate correction.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 32, 35
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2), 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Hampton v R [2014] NSWCCA 131
- JM v R [2008] NSWCCA 254
- Khoury v R [2011] NSWCCA 118
- Little v R [2018] NSWCCA 63
- Luu v R [2008] NSWCCA 285
- Niass v R (NSWCCA, 16 November 1988, unreported)
- R v AZ [2011] NSWCCA 43
- R v Karageorge [1999] NSWCCA 213
- R v MJM [2004] NSWCCA 66
- R v Munday [1981] 2 NSWLR 177
- R v Thalari [2009] NSWCCA 170
- R v Willard [2001] NSWCCA 6
- Refaieh v R [2018] NSWCCA 72
- Springer v R [2007] 289