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Court of Criminal Appeal 21 December 2020

Connell v R

[2020] NSWCCA 352

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL APPEAL AGAINST SENTENCE ALLOWED NEED TO RE SENTENCE.

Citation: Connell v R [2020] NSWCCA 352
Court: NSW Court of Criminal Appeal
Date: 21 December 2020
Judge(s): Hoeben CJ at CL; Davies J; Fagan J

Background

The appellant pleaded guilty in the Local Court on 25 September 2019 to three principal charges: supply of a large commercial quantity of MDA (6.5245 kg, approximately 13 times the large commercial quantity threshold), possession of a shortened firearm, and possession of a pistol. Four further charges were listed on a Form 1 to be taken into account on sentence.

The offending arose from a police investigation, Strike Force Deveril, which used covert electronic surveillance. On 16 February 2019, police executed a search warrant at the appellant's Tuckombil premises and found the drugs, two firearms, cash, and drug-packaging equipment. The appellant and his co-offender had spent several hours packaging the MDA pills into heat-sealed lots while consuming cocaine and cannabis.

The District Court sentenced the appellant to an aggregate term of 8 years and 6 months with a non-parole period of 5 years and 6 months. His co-offender received a slightly longer aggregate term of 9 years with a 6-year non-parole period. The appellant challenged the sentence on three grounds.

  • Whether the sentencing judge erroneously applied the early plea of guilty discount to the aggregate sentence rather than to each indicative sentence individually.
  • Whether, in the alternative, the sentencing judge's remarks were sufficiently ambiguous to give rise to a real possibility that correct legal principle was not applied when discounting for the guilty plea.
  • Whether the appellant had a justifiable sense of grievance in light of the disparity between his sentence and that of the co-offender.

Decision

The Court of Criminal Appeal found that the sentencing judge's reasons were ambiguous as to whether the 25 per cent early plea discount had been applied to the individual indicative sentences or only to the aggregate sentence. That ambiguity, the Court held, constituted an error of law sufficient to justify intervention, even if it could not be established definitively that the judge had applied the discount incorrectly.

On the disparity ground, the Court found that the appellant did have a justifiable sense of grievance. The sentencing judge had acknowledged the appellant's substantially stronger subjective case compared with the co-offender, who was on conditional liberty at the time of the offending. Despite those differences, the gap between the two sentences was not sufficiently pronounced to reflect them.

The Court allowed the appeal and re-exercised the sentencing discretion independently. It took into account the quantity of the drug (significant), its low purity (between 5.5 and 6.5 per cent), the isolated and relatively brief nature of the supply offending, and the appellant's role, which was not at the lower end of the supply chain but not plainly a high one either. A 25 per cent discount for the early guilty plea was then applied to each indicative sentence.

The resulting aggregate sentence was reduced to 8 years with a non-parole period of 5 years and 2 months, both commencing 16 February 2019.

Orders Made

  • Appeal allowed.
  • The sentence imposed by Priestley SC DCJ on 16 December 2019 is quashed.
  • In lieu thereof, the appellant is sentenced to 8 years imprisonment commencing 16 February 2019 and expiring 15 February 2027, with a non-parole period of 5 years and 2 months expiring 15 April 2024.
  • Indicative sentences (after 25 per cent plea discount): supply large commercial quantity of MDA, 6 years and 6 months; possess shortened firearm, 2 years and 3 months; possess pistol, 1 year and 2 months.

Key Takeaways

  • Ambiguity in a sentencing judge's reasons as to whether a plea of guilty discount was applied to individual indicative sentences (rather than only to the aggregate) amounts to an error of law and is sufficient to justify appellate intervention.
  • Where an aggregate sentence is imposed, the correct approach requires the guilty plea discount to be applied to each indicative sentence, not merely to the aggregate figure; a failure to do so clearly, or reasons that leave the matter unclear, will enliven appellate review.
  • A justifiable sense of grievance can be established where the sentencing judge acknowledged a materially stronger subjective case for the appellant compared to a co-offender, but the resulting sentence disparity did not adequately reflect that difference.
  • Low drug purity, an isolated and brief episode of supply, and an intermediate role in the supply chain are all factors that a sentencing court must weigh alongside the gross quantity of drug when determining the appropriate sentence for large commercial drug supply.
  • In dismissing grounds that cannot be conclusively established, the Court of Criminal Appeal may nonetheless allow an appeal on the alternative ground of inadequate reasons, reinforcing the importance of transparent and complete sentencing remarks.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b), 65(1)
- Crimes Act 1900 (NSW), s 293C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- R v Andrew John Black; R v Rowan Alastair Connell [2019] NSWDC 756
- Berryman v R [2017] NSWCCA 297
- Elsaj v R [2017] NSWCCA 124
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- PG v R [2017] NSWCCA 179
- R v Cahill [2015] NSWCCA 53
- Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291