AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 December 2020

Hussein v R

[2020] NSWCCA 342

DrugsPublic order & justice offences
CRIMINAL LAW OFFENCES SENTENCE APPEAL UNWARRANTED PARSING OF REASONS GROUND OF APPEAL NOT MADE OUT

Citation: Hussein v R [2020] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 18 December 2020
Judges: Hoeben CJ at CL, Bellew J, Wright J

Background

The applicant pleaded guilty in the Local Court to two offences: supplying a large commercial quantity of methylamphetamine (count 1) under the Drug Misuse and Trafficking Act 1985 (NSW), and participating in a criminal group under the Crimes Act 1900 (NSW) (count 2). He was sentenced in the District Court in September 2017 to nine years' imprisonment with a six-year non-parole period on count 1, and a fixed term of one year and ten months on count 2.

The offending involved a criminal group of five members who conducted multiple methylamphetamine supply transactions to an undercover police operative between December 2015 and January 2016. The applicant was the central contact point for those transactions, though he remained subordinate to the group's leader. The supplies ranged from approximately 167 grams to just over one kilogram, with individual transactions attracting prices of up to $60,000.

The applicant sought an extension of time in which to file a notice seeking leave to appeal against his sentence, approximately three years after it was imposed. He supported the application with affidavit evidence from himself and his solicitor.

  • Whether the sentencing judge erred by treating the applicant's financial gain from drug supply as an aggravating factor when imposing sentence
  • Whether, on a proper reading of the sentencing judge's reasons, any such error could be established
  • Whether an extension of time in which to seek leave to appeal should be granted

Decision

The applicant's sole proposed ground of appeal was that the sentencing judge had impermissibly treated financial gain as an aggravating circumstance. Bellew J, with whom Hoeben CJ at CL and Wright J agreed, examined the sentencing proceedings in detail and rejected this characterisation.

During the sentencing hearing, the Crown took care to flag that financial gain should not simply be treated as an aggravating factor, noting the need for caution when considering the money made from drug dealing. Defence counsel also addressed the topic, acknowledging the absence of evidence of personal financial benefit to the applicant. Neither party advanced a case that financial gain was an aggravating factor.

Bellew J found that the sentencing judge's reasons contained no express reference to financial gain as an aggravating circumstance. In the court's view, the applicant's submissions amounted to unwarranted parsing of the reasons, seeking to draw an inference of error where the reasons were not in fact ambiguous. The Court noted that a sentencing judge's reasons need not address every submission raised, and that mere reference to evidence about money derived from drug supply does not, without more, establish that the judge treated financial gain as an aggravating factor.

The Court distinguished prior decisions where error of this kind had been made out. In those cases, the sentencing judge had made multiple specific references to financial gain in the context of aggravating circumstances. Here, no such references appeared, and the proceedings had not been conducted on that basis at all.

Orders Made

  • The application for an extension of time in which to file an application for leave to appeal against sentence is refused.
  • The appeal is dismissed.

Key Takeaways

  • No error was established where a sentencing judge made no express reference to financial gain as an aggravating factor, and the proceedings were not conducted on that basis by either party.
  • A claim of sentencing error based on ambiguity in a judge's reasons requires genuine ambiguity. The Court of Criminal Appeal will not infer error from overly close parsing of reasons that are, on their face, clear.
  • Under the relevant case law, financial gain will only constitute an established aggravating factor in a drug supply sentence where the sentencing judge specifically and repeatedly identifies it as such in the context of aggravating circumstances (as occurred in Farkas v R and Huang v R).
  • Refusing the extension of time, the Court confirmed that the lengthy delay in bringing the application, combined with the absence of a viable ground of appeal, weighed against the grant of any extension.
  • Evidence that money was derived from drug supply transactions does not, without more, demonstrate that a sentencing judge has treated financial gain as an aggravating circumstance.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1)

Cases:
- Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
- Huang v R [2017] NSWCCA 312
- Hughes v R [2008] NSWCCA 48
- R v Van Hong Pham [2005] NSWCCA 94
- Daniels v R [2007] NSWCCA 372
- Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291