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Court of Criminal Appeal 30 June 2021

Lee v R

[2021] NSWCCA 137

Drugs
CRIME APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Lee v R [2021] NSWCCA 137
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2021
Judges: Basten JA; Price J; Garling J

Background

The appellant was sentenced in the District Court at Tamworth in July 2020 for supplying less than the commercial quantity of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The supply involved three separate transactions between February and March 2019, totalling 51.4 grams of methylamphetamine, and arose from an undercover police investigation targeting a drug supply network in Tamworth.

The appellant, who was 34 years old at the time of the offending, was identified as one of several "up-line suppliers" used by a local distributor. He had driven from Dubbo to Canberra to source drugs for the largest of the three supplies, which involved 47.9 grams sold to an undercover officer for $12,000. He received $9,600 from that transaction.

After entering a guilty plea in the Local Court (attracting a 25 per cent discount), the appellant was sentenced to 4 years and 6 months imprisonment, with a non-parole period of 2 years and 10 months. He sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of 4 years and 6 months imprisonment (with a non-parole period of 2 years and 10 months) for supplying less than the commercial quantity of methylamphetamine was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Price J (with whom Basten JA and Garling J agreed) found that the sentencing judge had made no identifiable error and that the sentence, while stern, was neither unreasonable nor plainly unjust.

The sentencing judge had assessed the objective seriousness of the offending as sitting at the upper end of the low range, tending toward the mid-range. The Court of Criminal Appeal found this assessment was amply open on the evidence. Relevant factors included the quantity and purity of the drug, the appellant's role as a mid-level supplier, his use of multiple mobile phones (some registered with false details), his ability to obtain a significant quantity of drugs at short notice, and the fact that the three supplies formed part of a course of conduct rather than isolated incidents.

A significant aggravating factor was that the appellant was on parole at the time of the offending, having previously been sentenced to 8 years imprisonment for serious drug and firearm offences that included the supply of methylamphetamine. His subjective case offered little mitigation: the sentencing assessment report characterised his expressions of remorse as disingenuous, his risk of reoffending was assessed as medium to high, and his prospects of rehabilitation were described as guarded.

Basten JA observed that a claim of manifest excess requires a demonstrated miscarriage of the sentencing exercise or a sentence outside the available range. Neither was established here. The Court also noted the limited utility of sentencing statistics in a case with such a significant aggravating factor as committing a supply offence while on parole for similar offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A claim of manifest excess requires the appellant to demonstrate either that the sentencing exercise miscarried or that the sentence exceeded the available range. An invitation to reassess the same facts and reach a different conclusion is insufficient.
  • Offending while on parole for prior drug supply offences constitutes a significant aggravating factor that can substantially reduce the weight otherwise given to sentencing statistics drawn from comparable cases.
  • The Court of Criminal Appeal confirmed that the sentencing judge's placement of the offending at the upper end of the low range of objective seriousness was well open, given the quantity of drug, the purity level, the appellant's mid-level role, and the organised nature of the supply.
  • Where a defendant's subjective case is limited by findings of disingenuous remorse, a medium-to-high risk of reoffending, and guarded rehabilitation prospects, those factors afford little mitigation at sentencing.
  • In dismissing the appeal, the Court acknowledged the sentence was stern but held that "stern" and "manifestly excessive" are not the same thing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 193B(1)

Cases
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2