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Court of Criminal Appeal 6 October 2021

Chartres-Abbott v R

[2021] NSWCCA 239

Also reported as 291 A Crim R 225
DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS DRUG OFFENCES SUPPLY PROHIBITED DRUG

Citation: Chartres-Abbott v R [2021] NSWCCA 239
Court: Court of Criminal Appeal, New South Wales
Date: 6 October 2021
Judges: Brereton JA (principal judgment); Campbell J and Hamill J (agreeing)

Background

The appellant pleaded guilty in the Local Court to five offences: one count of supplying a large commercial quantity of methylamphetamine (888.79 grams), two counts of supplying commercial quantities of prohibited drugs (368.8 grams of heroin and 372.63 grams of methylamphetamine), and two counts of possessing a shortened firearm without authority. The offending arose from a covert police operation in 2019, during which the appellant was identified as an up-line supplier to a co-offender who in turn supplied an undercover operative.

On 28 August 2020, the District Court at Gosford sentenced the appellant to an aggregate term of 14 years' imprisonment with a non-parole period of 8 years and 6 months. The indicative separate sentences for each offence, had they been wholly accumulated, would have totalled 21 years and 8 months. A 25% discount for the guilty plea was applied to each indicative sentence.

The appellant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive, having particular regard to the objective seriousness of the offending.

  • Whether the aggregate sentence of 14 years was manifestly excessive when measured against comparable cases and sentencing statistics for offences under the Drug Misuse and Trafficking Act 1985 (NSW)
  • How to treat the guilty plea discounts applied to individual indicative sentences when comparing the aggregate sentence against other cases for the purpose of assessing manifest excess
  • Whether, on re-sentencing, greater concurrency among the indicative sentences was warranted given the nature of the offending

Decision

Manifest excess. The Court confirmed the established test: to succeed on a ground of manifest excess, an appellant must demonstrate that the sentence was "unreasonable or plainly unjust," which may be inferred where the sentence falls "so far outside the range of sentences available" that error must be taken to have occurred. This is a demanding standard, but it was satisfied here.

Comparison with comparable cases. Because the same 25% discount was applied to each indicative sentence, the Court treated the pre-discount equivalent of the aggregate sentence as approximately 18 years and 8 months. When compared with both JIRS statistics and decided cases involving offences under section 25(2) of the Drug Misuse and Trafficking Act, including cases with considerably greater quantities of methylamphetamine and cases also involving firearms, starting points of 12 to 16 years emerged as the relevant range. The sentence imposed was substantially above that range and was therefore manifestly excessive.

Re-sentencing. The Court adopted the primary judge's indicative sentences and the finding of special circumstances without disturbance, as neither was challenged. The Court found that the offending was substantially concurrent, forming part of the same enterprise, and that greater concurrency was warranted than the primary judge had allowed. An aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years was substituted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 14 years (non-parole period 8 years and 6 months) imposed in the District Court quashed
  • In lieu thereof, an aggregate sentence of 10 years' imprisonment imposed, with a non-parole period of 6 years

Key Takeaways

  • To establish manifest excess, an appellant must show the sentence was unreasonable or plainly unjust, which may be inferred when the sentence falls well outside the range available on the facts.
  • Where the same percentage guilty plea discount is applied uniformly to each indicative sentence, it is reasonable, for comparison purposes, to work backwards to a notional pre-discount aggregate in order to compare like with like against other decided cases.
  • Comparable cases, while not definitive, are a legitimate and necessary reference point: instinctive synthesis in sentencing cannot occur in isolation from sentences imposed in like cases, or it becomes entirely idiosyncratic.
  • The Court of Criminal Appeal confirmed that when multiple offences are substantially concurrent and form part of the same criminal enterprise, an aggregate sentence must reflect a meaningful degree of concurrency rather than near-total accumulation.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), the quantity within a large commercial quantity offence is unlimited above the threshold, meaning quantity above the threshold remains a relevant factor in assessing objective seriousness but does not mechanically drive the sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), ss 51D(2), 62(1)(b), 65(3)

Key Cases
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen (2010) 242 CLR 520
- Obeid v R (2017) 96 NSWLR 155
- Mills v R [2017] NSWCCA 87
- Hughes v R [2018] NSWCCA 2
- Huang v R [2019] NSWCCA 144
- Roberts (a pseudonym) v R [2019] NSWCCA 102
- McLean v R [2020] NSWCCA 344
- Jackson v R [2021] NSWCCA 15
- Pratt v R [2021] NSWCCA 76
- R v Mahmud [2010] NSWCCA 219
- R v Li [2014] NSWCCA 327