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Court of Criminal Appeal 11 December 2020

Tamer v R

[2020] NSWCCA 333

Drugs
CRIMINAL LAW OFFENCES SENTENCE APPEAL ERROR ESTABLISHED APPLICANT RE

Citation: Tamer v R [2020] NSWCCA 333
Court: NSW Court of Criminal Appeal
Date: 11 December 2020
Judges: Brereton JA, Bellew J, Campbell J

Background

The applicant pleaded guilty in the District Court to supplying not less than the large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending spanned 22 separate transactions between December 2016 and February 2017, during which the applicant supplied a total of 1,060 grams of methylamphetamine, predominantly to a single purchaser, generating approximately $137,000 in proceeds.

The applicant was sentenced in December 2019 to 7 years and 10 months imprisonment with a non-parole period of 4 years and 9 months. He sought leave to appeal on the basis that the sentencing judge proceeded on materially incorrect factual findings.

  • Whether the sentencing judge erred by stating the applicant was aged 23 at the time of the offending, when he was in fact aged 21.
  • Whether the sentencing judge erred by finding the applicant was on bail at the time of the offending and treating that as a statutory aggravating factor.
  • Whether either error had the capacity to influence the sentence imposed, thereby warranting re-sentencing.

Decision

The Court found that the sentencing judge made two errors of fact. First, his Honour stated the applicant was aged 23 at the time of the offending; the applicant was born on 1 November 1995 and was in fact 21 years old during the offending period. Second, his Honour found the applicant was on bail at the time of the offending and treated that as an aggravating circumstance under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999. In reality, it was the co-offender who was on bail, not the applicant. Both errors were ultimately conceded by the Crown.

The Court left open whether the age error alone had the capacity to affect the sentence. However, the bail error was plainly material: the sentencing judge had expressly taken it into account as an aggravating factor, which meant it did not merely have the capacity to influence the sentence but demonstrably did so. That was sufficient to establish error and require re-sentencing.

On re-sentencing, the Court characterised the offending as below the mid-range of seriousness for this category of offence. While the applicant played a pivotal role in a planned and organised drug supply operation, the supplies were predominantly made to a single purchaser and the quantities, though exceeding twice the large commercial quantity, were not at the upper end of the scale. The applicant was also an intermediary toward the lower end of the supply chain, a young offender at the time of the offending, and had the benefit of a guilty plea.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Applicant re-sentenced to imprisonment for 7 years and 6 months, commencing 17 March 2017 and ending 16 September 2024.
  • Non-parole period of 4 years and 6 months, commencing 17 March 2017 and expiring 16 September 2021.

Key Takeaways

  • A sentencing judge's erroneous finding that an offender was on bail at the time of the offending, where that finding was expressly used as an aggravating factor, constitutes identifiable error that necessitates re-sentencing by the appellate court.
  • The Court of Criminal Appeal left open whether a two-year error as to an offender's age at the time of offending, standing alone, would have the capacity to influence a sentence, finding it unnecessary to resolve that question given the bail error was sufficient to ground the appeal.
  • Where a sentencing error is established, the appellate court conducts a fresh exercise of the sentencing discretion, considering all relevant factors anew, including submissions made by the parties on a manifestly excessive ground that no longer strictly required determination.
  • Under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, committing an offence while on conditional liberty (including bail) is a statutory aggravating factor. Its misapplication to the wrong person constitutes error on the face of the record.
  • In assessing objective seriousness for large commercial drug supply offences, the Court of Criminal Appeal had regard to factors including the offender's role in the supply chain, the number of transactions, the range and identity of purchasers, and how the total quantity compared to the broader scale of the offence category.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2)(j)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- HJ v R [2014] NSWCCA 21
- JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Newman (a pseudonym) v R [2019] NSWCCA 157
- R v Elfar [2003] NSWCCA 358
- R v Mastronardi (2000) 111 A Crim R 306; [2000] NSWCCA 12
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353