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7
Court of Criminal Appeal 22 April 2020

Osman v R

[2020] NSWCCA 78

Drugs

Citation: [2020] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 22 April 2020
Judges: Johnson J, Price J, Lonergan J

Background

The appellant pleaded guilty in the District Court at Campbelltown to two counts of supply prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW): supply of an indictable quantity (21.88 g) of methylamphetamine and supply of a traffickable quantity (4.07 g) of cocaine. A further possession of 0.35 g of heroin was taken into account on a Form 1 (a procedural mechanism by which a court accounts for additional, uncharged offences when imposing sentence on the principal offences).

Police stopped a vehicle in which the appellant was a passenger in July 2017. Officers found the drugs concealed in a moisturiser container strapped to the appellant's leg, alongside small resealable bags consistent with street-level dealing. The appellant was arrested and has remained in custody since that date.

After applying a 25% discount for the guilty pleas, the District Court imposed an aggregate sentence of 2 years and 8 months with a non-parole period of 1 year and 8 months. The sentencing was complicated by the appellant's history of conditional liberty and a series of additional offences and breaches dealt with by Local Courts in the intervening period.

  • Whether the sentencing judge failed to properly apply the totality principle when setting the aggregate sentence (that is, whether the combined sentence was appropriately adjusted to reflect the overall criminality rather than simply adding individual terms together)
  • Whether the sentencing judge erred by failing to account for a legislative amendment that would have permitted the methylamphetamine supply charge to be dealt with summarily (in the Local Court), with a lower maximum penalty
  • Whether the aggregate sentence of 2 years and 8 months was manifestly excessive

Decision

Ground 1: Totality. The Court of Criminal Appeal found no error in how the sentencing judge approached totality. Her Honour had carefully worked through the applicable custody periods, accounted for the interplay between the drug sentences and the Local Court sentences, and arrived at an aggregate term that properly reflected the overall criminality without being crushing. The ground was not made out.

Ground 2: Legislative amendment. The appellant argued that a legislative amendment, which made the type of methylamphetamine offence charged capable of being dealt with summarily, should have been taken into account to moderate the sentence. The Court rejected this ground. The amendment did not alter the maximum penalty for the offence as charged, and a court's discretion to deal with a matter summarily does not, of itself, reduce the appropriate sentence where the offending is properly prosecuted on indictment.

Ground 3: Manifest excess. The Court acknowledged that the sentence was a stern one for a young offender with a difficult background. However, it found no error that would warrant intervention. The sentencing judge had considered the appellant's youth, personal circumstances, and the discount for the guilty pleas, balanced against the objective seriousness of the offending and a prior record that included violence, intimidation, and breaches of conditional liberty. The Court concluded the sentence was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence allowed.
  • Appeal dismissed.

Key Takeaways

  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that a legislative amendment permitting an offence to be dealt with summarily does not automatically reduce the appropriate sentence where the prosecution has properly proceeded on indictment.
  • The totality principle requires a sentencing judge to review whether an aggregate sentence appropriately reflects the overall criminality; the Court found no error where the judge had carefully traced each period of custody and its relationship to the charges being sentenced.
  • A stern sentence for a young offender with a disadvantaged background does not, without more, establish manifest excess; the Court weighed the appellant's mitigating circumstances against the objective gravity of multi-drug supply offending and a pattern of prior non-compliance.
  • No error was established merely because a final sentence sits at the higher end of the range, provided the sentencing judge has engaged with all relevant factors in a methodical and transparent way.
  • The interplay between Local Court sentences (for unrelated offending dealt with before the District Court sentence) and the drug offences required close attention to which periods of custody were referable to which matters; the Court found this exercise had been properly performed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dagdanasar v R (2010) 57 MVR 230; [2010] NSWCCA 310
- GS v R [2016] NSWCCA 266
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kandemir v R [2018] NSWCCA 154
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Jones [2003] NSWCCA 54
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v Oliver (1980) 7 A Crim R 174
- R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123
- R v Said El Masri [2005] NSWCCA 167
- R v Sandford (1994) 33 NSWLR 172
- RCW v R (No 2) (2014) 244 A Crim R 541; [2014] NSWCCA 190
- Taitoko v R [2020] NSWCCA 43
- ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44