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Court of Criminal Appeal 8 October 2021

Awraham v R (Cth)

[2021] NSWCCA 241

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE DETERMINATION

Citation: Awraham v R (Cth) [2021] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 8 October 2021
Judges: Davies J, Hamill J, Wilson J

Background

The applicant had been convicted in the District Court of state offences involving drug and firearm possession, as well as a Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug (cocaine). The sentencing judge, Judge Weinstein SC, imposed a total sentence of 9 years with a non-parole period of 6 years, 6 months and 15 days. The sentence for the Commonwealth offence was accumulated (that is, added on top of, rather than run concurrently with) the state sentences by 18 months.

The applicant sought leave to appeal against the Commonwealth sentence on the ground that it was manifestly excessive. The applicant did not contend that the sentencing judge had made any patent legal error in the sentencing remarks. Rather, the challenge was directed at the overall outcome as disproportionate to the totality of the criminality involved.

The sentencing judge had made a finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to the state offences, citing the offending's position below mid-range seriousness, the applicant's age, his adult behaviour relative to his juvenile history, and his prospects of rehabilitation. The judge adjusted individual sentences accordingly, but the effect of that adjustment was substantially reduced by the 18-month accumulation.

  • Whether the sentence imposed for the Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug was manifestly excessive.
  • Whether the 18-month accumulation of the Commonwealth sentence on the state sentences produced a total non-parole period disproportionate to the overall criminality, contrary to the totality principle.
  • The appropriate weight to be given to untested subjective evidence (including a psychologist's report, the applicant's letter, and his father's affidavit) in the sentencing exercise.
  • The proper use of comparable sentences as a reference point in assessing manifest excess.

Decision

The Court was divided, with Davies J and Wilson J forming the majority dismissing the appeal, and Hamill J dissenting in favour of finding the sentence manifestly excessive.

Wilson J (majority): Her Honour found no error in the sentencing judge's approach. While acknowledging that the sentence was a stern one falling at the upper end of the available range, Wilson J was not persuaded that it fell outside that range or represented a substantial wrong. Her Honour treated the applicant's untested subjective evidence with caution, noting that his claims had not been tested by cross-examination and that his attendance at rehabilitation programmes, while positive, fell short of the completed rehabilitation asserted on his behalf.

Davies J (majority): After reviewing comparable cases, Davies J concluded that the sentence, though stern, was within the range available to the sentencing judge having regard to the objective seriousness of the offending, the applicant's role, and his subjective case taken at its highest. His Honour agreed with Wilson J's reasons and proposed orders.

Hamill J (dissenting): His Honour reached the contrary conclusion that the sentence was manifestly excessive. He identified three core reasons. First, the 18-month accumulation undermined the downward adjustment the sentencing judge had intended to make for special circumstances, producing a non-parole period representing approximately 72.7% of the total sentence, a ratio inconsistent with the judge's stated intention to depart from the statutory norm of 75%. Second, Hamill J took a different view of the weight properly attributable to the applicant's subjective case, considering that the psychologist's untested professional opinion should not have been significantly discounted without cross-examination, drawing on principles articulated in Devaney v R [2012] NSWCCA 285. Third, his Honour considered that the combination of favourable subjective factors, taken alongside the sentencing judge's own findings, warranted a lower sentence.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest excess is a conclusion, not a finding of specific error; a sentence can be manifestly excessive even where no patent error appears in the sentencing remarks.
  • A 2-1 majority found that a sentence falling at the upper end of the available range is not thereby manifestly excessive, provided the sentencing judge's approach discloses no legal error.
  • Where a sentencing judge makes a finding of special circumstances and adjusts individual sentences accordingly, the totality principle requires attention to whether accumulation of sentences defeats the intended adjustment to the non-parole period ratio.
  • Regarding untested subjective evidence, Hamill J's dissent drew a distinction between discounting an offender's own self-serving statements (which may be appropriate) and reducing the weight of a professional psychologist's opinion that was unchallenged in cross-examination (which requires greater caution).
  • The comparative exercise of examining sentences in other cases remains a useful, though limited, tool in assessing manifest excess; the question is always whether the sentence is within the range appropriate to the individual case, not whether it falls within a statistical distribution of past outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Cutajar v R [2020] NSWCCA 273
- DAB v R [2010] NSWCCA 2745
- Dang v R [2013] NSWCCA 246
- Devaney v R [2012] NSWCCA 285
- Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Liu v R [2005] NSWCCA 450
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ng v R (Cth) [2010] NSWCCA 232
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen (2013) 233 A Crim R 167; [2013] NSWCCA 136
- R v Awraham [2019] NSWDC 341