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Court of Criminal Appeal 1 May 2020

Sahyoun v R

[2020] NSWCCA 87

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE UTILITARIAN VALUE OF PLEA REASONS FOR DELAY PRINCIPLES OF TOTALITY

Citation: Sahyoun v R [2020] NSWCCA 87
Court: Court of Criminal Appeal, New South Wales
Date: 1 May 2020
Judge(s): Gleeson JA, Walton J, Fullerton J

Background

The appellant was charged with three counts of supplying methylamphetamine arising from a 2013 police undercover operation in western Sydney. The offences involved supplying 3.4 grams (count 1), 27.5 grams (count 2), and a larger quantity (count 3) to a co-offender who in turn sold the drugs to an undercover officer. The appellant operated as a wholesale dealer, supplying in incrementally larger quantities and for commercial reward.

On the first day of trial in July 2018, roughly five years after the offences, the appellant entered guilty pleas to counts 1 and 2. Count 3 proceeded to trial, and the jury acquitted him of the principal charge but convicted him of a statutory alternative: supply of not less than the indictable quantity (55.4 grams) of methylamphetamine.

In November 2018, the District Court sentenced the appellant to an aggregate head sentence of 3 years and 7 months with a non-parole period of 2 years and 5 months. The appellant sought leave to appeal against that sentence, raising several grounds including the adequacy of the discount for guilty pleas, the application of the totality principle, and manifest excess.

  • Whether the sentencing judge correctly assessed the utilitarian value of the guilty pleas entered on the first day of trial, given the reasons for the delay
  • Whether the sentencing judge properly applied the totality principle when imposing the aggregate sentence
  • Whether the sentencing judge's reasons adequately explained the structure of the sentences across the three counts
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentence should be served in the community by way of an intensive corrections order, having regard to the appellant's rehabilitation and community safety

Decision

The Court of Criminal Appeal allowed the appeal and resentenced the appellant. The Court found error in the sentencing below, particularly in the application of the totality principle and in the treatment of the guilty plea discount. The sentencing judge had applied a 10 per cent discount for the guilty pleas to counts 1 and 2, which the Court accepted. However, the same 10 per cent was applied to count 3 (the jury verdict), and the reasons for sentence were found to be insufficiently clear in explaining how the aggregate was reached across all three counts.

On totality, Fullerton J found that the sentencing judge had not adequately reduced the overall sentence to reflect the fact that the offending arose from a series of connected drug transactions involving the same offender over a defined period. The Court noted that the principles in Parente v R required careful attention to the cumulative weight of the sentences in the context of the appellant's overall criminality.

The Court placed significant weight on the appellant's subjective circumstances, which had continued to develop favourably between sentencing in 2018 and the appeal hearing in late 2019. The appellant had not reoffended in nearly seven years, had demonstrated genuine remorse, and had effectively rehabilitated himself. The Court accepted that these factors, combined with the delay in delivering the Court's own reasons (which was found to have caused the appellant understandable apprehension), warranted a finding of special circumstances, allowing a greater proportion of the sentence to be served on parole.

The Court was satisfied that considerations of community safety did not preclude the sentence being served in the community. Given the appellant's demonstrated resolve to remain drug-free and to distance himself from the drug environment, the Court ordered that the aggregate sentence be served by way of an intensive corrections order.

Orders Made

  • Leave to appeal granted; appeal against sentence allowed
  • Sentence imposed in the District Court on 9 November 2018 quashed
  • Appellant resentenced to an aggregate term of imprisonment of 2 years and 6 months, commencing 7 January 2020, with a non-parole period of 15 months from the same date
  • Sentence directed to be served by way of an intensive corrections order
  • Sentence backdated to account for 3 months and 24 days previously spent in custody

Key Takeaways

  • A guilty plea entered on the first day of trial may still attract a utilitarian discount, but the sentencing court must clearly articulate the reasons for any delay and calibrate the discount accordingly.
  • Where multiple related offences are sentenced together, the totality principle requires that the aggregate sentence reflect the overall criminality and not merely the mechanical accumulation of individual terms. The Court of Criminal Appeal confirmed that the principles in Parente v R remain central to this analysis.
  • Rehabilitative progress occurring after the original sentencing date can be taken into account on a resentencing following a successful appeal. The Court found the appellant had effectively rehabilitated over the seven years since offending.
  • Delay by the appellate court itself in delivering reasons can constitute a relevant factor in finding special circumstances, justifying a longer parole period relative to the head sentence.
  • An intensive corrections order remains available for serious drug offences where the sentencing court is satisfied, on the evidence, that community safety considerations do not outweigh the case for a community-based custodial order.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 54(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW)

Cases:
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
- Jimmy v R (2010) 269 ALR 115; [2010] NSWCCA 60
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Charhaji v R [2019] NSWCCA 28
- Karout v R [2019] NSWCCA 253
- Hallak v R [2014] NSWCCA 48
- Elchiekh v R [2016] NSWCCA 225
- Fenech v R [2018] NSWCCA 160
- PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
- Lloyd v R [2017] NSWCCA 303