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Court of Criminal Appeal 28 May 2021

Lewis v R

[2021] NSWCCA 108

Drugs
CRIMINAL LAW OFFENCES SENTENCE OFFENCES SENTENCE OFFENDER

Citation: Lewis v R [2021] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 28 May 2021
Judges: Hoeben CJ at CL, Bellew J, N Adams J

Background

The applicant was convicted by jury of manufacturing a large commercial quantity of methylamphetamine (13.059 kg) as part of a joint criminal enterprise, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending occurred over several days in late December 2015 at a property in East Kurrajong. The applicant arranged access to the property, transported equipment to the site, and was observed actively participating in the process before being overcome by chemical fumes and withdrawing from the shed.

A co-offender, Tsimingos, had pleaded guilty to the same offence and was sentenced earlier to 9 years' imprisonment with a non-parole period of 6 years and 9 months. Tsimingos suffered serious burns and shrapnel injuries when a reaction vessel exploded during the manufacturing process. The applicant, having elected to go to trial, was sentenced to 12 years' imprisonment with a non-parole period of 9 years.

The applicant sought leave to appeal against his sentence on three grounds: error in the assessment of his role, unjustified disparity with his co-offender's sentence, and manifest excess.

  • Whether the sentencing judge erred by finding the applicant's involvement was equivalent to that of Tsimingos, when the applicant's "hands-on" contribution to the actual manufacturing process was limited
  • Whether a sentencing judge assessing a joint criminal enterprise offence is confined to acts directly connected to the manufacturing process itself, rather than all acts in furtherance of the enterprise
  • Whether the three-year difference between the sentences imposed on the applicant and Tsimingos gave rise to unjustified disparity and a justifiable sense of grievance
  • Whether the sentence of 12 years with a 9-year non-parole period was manifestly excessive

Decision

Ground 1: Scope of relevant conduct. The Court of Criminal Appeal rejected the submission that the sentencing judge was restricted to assessing only the applicant's direct, "hands-on" acts in the manufacturing process. Where a person is convicted of manufacturing as part of a joint criminal enterprise, the sentencing court is entitled to have regard to all acts undertaken in furtherance of that enterprise. The applicant's conduct in arranging access to the property, delivering equipment, and participating in the operation fell squarely within this scope.

Ground 2: Co-offender disparity. The Court found no unjustified disparity. The difference in sentences was explained by a series of meaningful distinctions between the two offenders' subjective circumstances. Most significantly, Tsimingos suffered serious physical injuries in the explosion, which constituted extra-curial punishment (that is, punishment effectively imposed by the circumstances of the offending rather than by the courts). The Court held that the significance of those injuries was not diminished by the fact that they were sustained in the course of committing the offence. Additionally, Tsimingos had pleaded guilty, whereas the applicant went to trial. The Court noted that the companion appeal, Tsimingos v R [2021] NSWCCA 107, had found Tsimingos had a justifiable sense of grievance and reduced his sentence, but this did not alter the conclusion that the applicant himself had no such grievance.

Ground 3: Manifest excess. The Court found the sentence was not manifestly excessive. The applicant played a significant role in a serious offence involving a large commercial quantity of methylamphetamine. His subjective case was described as unremarkable, and the need for general deterrence was a weighty consideration. No error in principle or outcome was identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In sentencing for manufacturing a prohibited drug as part of a joint criminal enterprise, the sentencing court is not confined to the offender's direct physical acts in the manufacturing process. All conduct undertaken in furtherance of the enterprise is available for assessment.
  • A disparity in sentences between co-offenders does not automatically give rise to a justifiable sense of grievance. Differences in subjective circumstances, including guilty pleas and the extent of physical injury suffered as extra-curial punishment, can fully justify the differential.
  • Physical injuries sustained by a co-offender during the commission of an offence can still operate as extra-curial punishment for sentencing purposes. The fact that the injuries arose from the offending itself does not reduce their significance in that analysis.
  • Refusing to intervene on the manifest excess ground, the Court of Criminal Appeal confirmed that a significant role in large commercial drug manufacturing, combined with an unremarkable subjective case, warrants a substantial sentence where general deterrence is prominent.
  • The outcome in a companion co-offender appeal, where a sentence was reduced on disparity grounds, did not automatically flow through to benefit the remaining applicant. Each co-offender's position is assessed individually against the relevant comparators.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Cases
- Alameddine v R [2006] NSWCCA 317
- Cashel v R [2018] NSWCCA 292
- Christodoulou v R [2008] NSWCCA 102
- Gill v R [2010] NSWCCA 236
- Goodbun v R [2020] NSWCCA 77
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Li v R [2021] NSWCCA 75
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245
- Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
- Tatana v R [2006] NSWCCA 398
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Tsimingos v R [2021] NSWCCA 107