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Court of Criminal Appeal 10 September 2021

Carter (a pseudonym) v R

[2021] NSWCCA 208

Drugs
CRIMINAL LAW OFFENCES SENTENCE DRUG SUPPLY OFFENCES RANGE LIMITED ROLE PLAYED BY APPLICANT

Citation: Carter (a pseudonym) v R [2021] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 10 September 2021
Judges: Bathurst CJ, Simpson AJA, Bellew J

Background

The applicant pleaded guilty in the Local Court to three counts of supplying prohibited drugs contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charges involved 859.8g of MDMA (a large commercial quantity carrying a maximum of life imprisonment), 365.4g of MDMA (a commercial quantity), and 425g of heroin (a commercial quantity). Several additional possession and supply offences were taken into account on a s 166 Certificate.

The applicant's role was as a courier or holder of the drugs, passing bags to a co-offender who completed exchanges with undercover police officers in western Sydney. He was paid approximately $5,000 for his participation. Upon arrest, he made admissions and cooperated with police.

The District Court imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years. On appeal, the applicant challenged the sentencing judge's assessment that the principal count (Count 1) fell in the mid-range of objective seriousness, a characterisation that had also been conceded by defence counsel at the original sentencing hearing.

  • Whether exceptional circumstances existed entitling the applicant to resile from the concession made by his trial counsel that the offending fell in the mid-range of objective seriousness
  • Whether the sentencing judge's mid-range finding in relation to Count 1 was reasonably open on the evidence, given the applicant's limited role and the low purity of the drugs
  • Whether there had been a miscarriage of justice resulting from that finding
  • What the significance of drug weight is when an offence carries no upper limit in terms of quantity
  • Whether re-sentencing was warranted, and if so, what sentence was appropriate given findings of genuine remorse, good rehabilitation prospects, and special circumstances

Decision

The Court of Criminal Appeal found that the concession made by defence counsel at the sentencing hearing, that the offending was in the mid-range of objective seriousness, was a matter the applicant could only resile from by establishing exceptional circumstances. The Court accepted that exceptional circumstances had been established here because the mid-range finding was not reasonably open on the available evidence, giving rise to a miscarriage of justice.

Central to the Court's reasoning on Count 1 was the applicant's limited and subordinate role in the enterprise. He acted as a courier, handing bags to the co-offender who dealt directly with the undercover officer. The Court also noted the very low purity of the MDMA (averaging 8% and 6% respectively for the two MDMA counts), and discussed the significance of drug weight in circumstances where the relevant offence has no upper quantity limit. In those circumstances, the weight of the drug, while relevant, does not carry the same graduated significance it might in an offence with a defined upper threshold.

The Court found that, taking into account the applicant's limited role and the low purity of the drugs, a finding that Count 1 fell in the mid-range was not available. Error was established and re-sentencing followed. On re-sentence, the Court took into account the applicant's genuine remorse, his unlikely prospects of reoffending, and his excellent rehabilitation prospects. Special circumstances were found to exist, justifying a departure from the standard ratio between the non-parole period and the balance of the sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Aggregate sentence imposed in the District Court quashed
  • Indicative sentences imposed:
  • Count 1: 4 years and 9 months imprisonment
  • Count 2: 3 years imprisonment
  • Count 3: 3 years imprisonment
  • Offence (i) on the s 166 Certificate: 6 months imprisonment
  • Offence (ii) on the s 166 Certificate: 6 months imprisonment
  • Aggregate sentence of 6 years and 9 months imprisonment imposed, commencing 14 November 2018 and expiring 13 August 2025
  • Non-parole period of 4 years and 2 months, commencing 14 November 2018 and expiring 13 January 2023

Key Takeaways

  • A concession made by defence counsel as to objective seriousness binds the applicant on appeal unless exceptional circumstances are established; the Court confirmed that a finding not reasonably open on the evidence, producing a miscarriage of justice, can meet that threshold.
  • Where a drug supply offence carries no upper limit on quantity, the weight of the drug does not function as a simple graduated indicator of seriousness in the same way it does for offences with defined quantity thresholds.
  • Low purity of the drug and a subordinate, courier-type role can together render a mid-range characterisation of objective seriousness unavailable, even where the quantities involved are large.
  • Special circumstances justifying a longer parole period were established on the basis of genuine remorse, low risk of reoffending, and strong rehabilitation prospects.
  • The Court of Criminal Appeal reduced the aggregate sentence from 8 years (non-parole 5 years) to 6 years and 9 months (non-parole 4 years and 2 months), reflecting the error in the original objective seriousness assessment.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 23(1)(c), 25(1), 25(2), 33(2)(a), 33(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Mulato v R [2006] NSWCCA 282
- Romero v R (2011) 32 VR 486; [2011] VSCA 45
- Keane v R [2011] VSCA 156
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- Bayram v R [2012] VSCA 6
- Sharma v R [2017] NSWCCA 85
- R v Amati [2019] NSWCCA 193
- McDowall v R [2019] NSWCCA 29
- FL v R [2020] NSWCCA 114