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Court of Criminal Appeal 7 July 2021

Naberezhnov v R

[2021] NSWCCA 142

Drugs
C RIMINAL LAW OFFENCES SENTENCE ERROR ESTABLISHED CRIMINAL LAW OFFENCES ERROR ESTABLISHED CRIMINAL LAW

Citation: Naberezhnov v R [2021] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judges: Harrison J, Adamson J, Bellew J

Background

The applicant pleaded guilty in the Local Court to three drug supply offences committed between August and September 2018: ongoing supply of 193.8g of cocaine, offering to supply MDMA in a quantity exceeding the large commercial quantity (2.2835kg), and supplying 95.5g of MDMA at a dance festival. The offences were committed with co-accused who played various roles in the transactions, including acting as intermediaries and as the source of supply.

At first instance, the sentencing judge imposed indicative sentences of 4 years 6 months (count 1), 9 years with a non-parole period of 6 years 6 months (count 2), and 4 years 10 months (count 3), resulting in an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years.

The applicant sought leave to appeal, arguing that the sentencing judge made two distinct errors: first, by taking judicial notice of drug-related deaths at dance festivals when assessing objective seriousness; and second, by adopting a Crown submission that included an unproven factual assertion about the price of MDMA.

  • Whether a sentencing judge errs by taking judicial notice of unrelated drug-related deaths at dance festivals when assessing the objective seriousness of a specific drug supply offence.
  • Whether a sentencing judge errs by adopting Crown submissions on objective seriousness where those submissions incorporate a factual assertion not established by the agreed facts or evidence.
  • Whether a sentencing judge is required to engage with and give reasons in response to a submission advanced by the offender concerning the nature of their role.
  • Whether, notwithstanding established errors, re-sentence warranted a lesser aggregate sentence.

Decision

Ground 1: Judicial notice of unrelated deaths

The sentencing judge took judicial notice of the fact that people had died as a result of drug supply at dance festivals, and that such offending was commonly committed by young people with no criminal history. The Court held this gave rise to an error. While the setting of an offence can be relevant to its objective seriousness, the potential consequences of particular offending cannot be elevated by reference to what has occurred in unrelated, separate instances. Those considerations were relevant, if at all, to general deterrence, not to the objective gravity of the applicant's specific conduct.

Adamson J added that judges are entitled to make observations about matters of community concern in remarks on sentence, but where they do so, they must make clear whether those matters actually bear upon the sentence imposed. The sentencing judge's reasons did not dispel the risk that the unrelated deaths were factored into the objective seriousness assessment, and that ambiguity was itself sufficient to establish error.

Ground 2: Unproven Crown assertion and inadequate reasons

In relation to counts 1 and 2, the Crown submitted a price per ounce for the second kilogram of MDMA that was not part of the agreed facts and was not otherwise supported by the evidence. The sentencing judge accepted the Crown's submissions on objective seriousness without explaining the reasoning process by which he reached that conclusion, and without engaging with a submission made on behalf of the applicant about the nature of his role. The Court held this constituted a failure to give proper reasons, which is a necessary incident of the judicial process, and that the error affected the objective seriousness assessment.

Re-sentence

Despite finding error on both grounds, the Court conducted a re-sentence and concluded that no lesser sentence was warranted. The applicant played a significant role in each offence, the quantities involved were substantial, and both general and personal deterrence were relevant considerations. The appeal against sentence was therefore dismissed.

Orders Made

• The time in which to file the application for leave to appeal against sentence is extended to 21 December 2020.
• Leave to appeal against sentence is granted.
• The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the potential consequences of drug supply offending, assessed by reference to deaths occurring in unrelated cases, are not a legitimate basis for increasing the objective seriousness of a particular offence; such matters may bear on general deterrence but are conceptually distinct.
  • Where a sentencing judge takes judicial notice of matters of community concern, the remarks on sentence must make clear whether and how those matters affect the sentence actually imposed; unexplained ambiguity on that point can itself constitute error.
  • Adopting a party's submissions on a critical issue such as objective seriousness, where those submissions include a factual assertion that is neither agreed nor proved, constitutes a sentencing error.
  • A failure to engage with a submission advanced on behalf of the offender about their role, combined with an absence of reasoning about objective seriousness, amounts to a failure to give proper reasons as required by the judicial process.
  • In dismissing the appeal after re-sentencing, the Court confirmed that established sentencing errors do not automatically result in a reduced sentence; where the re-sentence independently supports the original term, the original sentence will stand.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- FL v R [2020] NSWCCA 114
- MRN v R [2006] NSWCCA 155
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Murray v R [2017] NSWCCA 262
- Pettitt v Dunkley [1971] 1 NSWLR 376
- PO v R [2020] NSWCCA 129
- R v Cage [2006] NSWCCA 304
- R v Campbell [2014] NSWCCA 102
- R v CBK [2002] NSWCCA 457; (2002) 135 A Crim R 260
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Medd (a pseudonym) [2016] NSWCCA 216
- R v Son Giang [2005] NSWCCA 387
- R v Van Ryn [2016] NSWCCA 1
- Roberts (a pseudonym) v R [2019] NSWCCA 102
- Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Vandeventer v R [2013] NSWCCA 33
- Vu v R [2006] NSWCCA 188