AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 3 September 2021

Meoli v R

[2021] NSWCCA 213

DrugsTraffic & drivingFirearms & weapons

Citation: Meoli v R [2021] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 3 September 2021
Judge(s): Bathurst CJ, Simpson AJA, Bellew J

Background

The applicant pleaded guilty in the District Court to six charges: three Commonwealth offences of importing a marketable quantity of a border controlled drug (GBL, commonly known as gamma-butyrolactone), two drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), and one prohibited weapon offence under the Weapons Prohibition Act 1998 (NSW). Additional matters, including breaches of existing sentencing orders and a driving-whilst-disqualified charge, were also dealt with at sentence.

The sentencing judge imposed aggregate sentences totalling seven years imprisonment with a non-parole period of four years and nine months. The applicant would become eligible for parole on 5 December 2026, with the judge recommending release only through an approved drug rehabilitation centre.

The applicant sought leave to appeal against both aggregate sentences on three grounds: that the sentencing judge erred by failing to assess whether he was unlikely to reoffend, and that each of the two aggregate sentences was manifestly excessive.

  • Whether the sentencing judge erred by failing to assess, under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether the applicant was unlikely to reoffend
  • Whether the aggregate sentence imposed for the State offences was manifestly excessive
  • Whether the aggregate sentence imposed for the Commonwealth offences was manifestly excessive

Decision

The Court dismissed all three grounds of appeal and upheld both aggregate sentences.

On Ground 1, the Court found that no submission had been made to the sentencing judge that the applicant was unlikely to reoffend. The Court reaffirmed the established principle that it is difficult to assert error on the part of a sentencing judge for failing to make a mitigatory finding that was never sought. Because the sentencing judge was not asked to engage with s 21A(3)(g), she was entitled to proceed on the basis that the provision was not engaged.

The Court also rejected the assumption underlying Ground 1, namely that the sentencing judge would inevitably have found in the applicant's favour on the question of reoffending. Given the applicant's significant criminal history, that assumption was characterised as unsafe. The Court distinguished the earlier decision in TL v R [2020] NSWCCA 265, where a submission on unlikelihood of reoffending had been made, the applicant had a limited and dissimilar criminal history, and there was evidence of prior good character. None of those features were present here.

On Grounds 2 and 3, the Court found no error in the sentencing judge's approach to either aggregate sentence and was not persuaded that the sentences were manifestly excessive.

Orders Made

  • Leave granted to appeal
  • Appeal dismissed

Key Takeaways

  • A sentencing judge cannot be said to have erred by failing to make a mitigatory finding under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where no submission about unlikelihood of reoffending was made at first instance.
  • The Court of Criminal Appeal confirmed that an assessment of an offender's prospects of rehabilitation is legally distinct from an assessment of the likelihood of reoffending; addressing one does not satisfy the requirement to consider the other.
  • In dismissing the appeal on Ground 1, the Court distinguished TL v R, emphasising that intervention to correct an overlooked mitigatory factor is only appropriate where that factor unequivocally operates in the offender's favour. A significant criminal record made such a conclusion unsafe here.
  • Where counsel has not raised a sentencing factor at first instance, the CCA's consistent position is that there is a high threshold before it will entertain arguments about that omission on appeal.
  • No error was established in either of the aggregate sentences, and both were upheld as appropriate to the objective seriousness of the offending and the applicant's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 9, 21A(1)(b), 21A(3)(g), 53, 53A, 54(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Code (Cth), s 307.2
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases:
- TL v R [2020] NSWCCA 265
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- Dicianni v R; Pintabona v R [2015] NSWCCA 201
- Phanekham v R [2015] NSWCCA 295
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
- Hughes v R [2018] NSWCCA 2
- Kresovic v R [2018] NSWCCA 37
- Taylor v R [2018] NSWCCA 255
- Zuffo v R [2017] NSWCCA 187
- Vartzokas v Zanker (1989) 51 SASR 277