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9
Court of Criminal Appeal 17 December 2020

McLean v R

[2020] NSWCCA 344

Drugs
CRIMINAL LAW SENTENCE APPEAL RANGE OF OBJECTIVE SERIOUSNESS ESCHEWING LABELS NO ERROR IN ASSESSMENT CRIMINAL LAW SENTENCE APPEAL

Citation: McLean v R [2020] NSWCCA 344
Court: Court of Criminal Appeal, NSW
Date: 17 December 2020
Judge(s): Leeming JA, Bellew J, Wright J (Wright J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court to supplying not less than a large commercial quantity of methylamphetamine, specifically 18.85 kg, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Police identified the applicant through an undercover operation involving encrypted messaging, and located the drug hidden in professionally installed concealed compartments in two vehicles.

The applicant played a hands-on role in the operation, meeting an undercover operative, renting a garage to store vehicles, and transporting the drugs. He declined to assist police and made no comment during recorded interview. Townsden DCJ sentenced him to 12 years and 7 months imprisonment with a non-parole period of 8 years and 7 months, the non-parole period reflecting a finding of special circumstances.

The applicant sought leave to appeal, contending that the sentencing judge wrongly assessed the objective seriousness of the offence and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as slightly above the mid-range
  • Whether the sentence of 12 years and 7 months, with a non-parole period of 8 years and 7 months, was manifestly excessive

Decision

Ground 1: Objective seriousness. The Court of Criminal Appeal found no error in the sentencing judge's assessment. The applicant had argued that characterising the offence as "slightly above mid-range" was wrong given his subordinate role. However, the Court noted that labels such as "mid-range" are useful tools, not rigid benchmarks, and that the sentencing judge had properly considered all relevant factors. The applicant held a trusted and integral role in a large-scale drug operation, which supported the characterisation. The quantity of drug involved also far exceeded the large commercial quantity threshold.

Ground 2: Manifest excess. The applicant relied substantially on statistical data drawn from the Judicial Commission's sentencing information, presented in the form of bar charts showing sentence ranges for comparable offences. The Court found this submission of limited utility. Consistent with the approach taken in Hordern v R [2019] NSWCCA 210, bare statistics without analysis of the specific facts, roles, quantities, and plea discounts in comparable cases provide no sound basis for concluding that a particular sentence is outside the available range.

The Court accepted that the sentence was stern, but found it was not so far outside the range of available sentences as to establish error, nor was it unreasonable or plainly unjust. The reduction of 10 months from the non-parole period due to special circumstances was noted. Both grounds failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that labels such as "mid-range" in assessing objective seriousness are practical guides rather than strict categories, and a sentencing judge who weighs all relevant circumstances correctly will not be found to have erred merely because another characterisation was arguable.
  • A trusted, hands-on role in a large-scale drug supply operation, even without being the organiser at the top of the hierarchy, can properly support a finding of seriousness above the midpoint.
  • Bare statistical data about sentencing ranges, presented without analysis of the underlying facts of the compared cases, is of limited value in establishing manifest excess. The approach in Hordern v R [2019] NSWCCA 210 was reaffirmed on this point.
  • In dismissing the manifest excess ground, the Court applied the established principle that a sentence will only be set aside on this basis if it is so far outside the available range that error must be inferred, or is unreasonable or plainly unjust.
  • No error was established merely because a sentence was characterised as "stern"; sternness alone does not constitute manifest excess.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing) Procedure Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- A v R [2020] NSWCCA 145
- Assam v R [2019] NSWCCA 12
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- El Kheir v R [2019] NSWCCA 288
- Healey v R [2018] NSWCCA 214
- Hordern v R [2019] NSWCCA 210
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jackson v R [2019] NSWCCA 101
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Melikian v R [2008] NSWCCA 156
- Mihelic v R [2019] NSWCCA 2
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nye v R [2018] NSWCCA 244
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Paxton v R [2011] NSWCCA 242
- R v Cage [2006] NSWCCA 304
- R v Dang [2005] NSWCCA 430