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Court of Criminal Appeal 16 December 2021

Mitchell v R

[2021] NSWCCA 306

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE SENTENCE WHETHER MANIFESTLY EXCESSIVE DRUG MANUFACTURING AND SUPPLY OFFENCES APEX OF ORGANISATION

Citation: Mitchell v R [2021] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judges: Beech-Jones CJ at CL, R A Hulme J, Dhanji J

Background

The appellant was the leader of a sophisticated drug manufacturing and supply syndicate operating in NSW. He pleaded guilty in the Local Court to manufacturing methylamphetamine in a large commercial quantity, supplying methylamphetamine in a large commercial quantity, and dealing with proceeds of crime knowing them to be such. A further offence of knowingly directing the activities of a criminal group was taken into account on a Form 1.

Investigations revealed the appellant directed and organised all aspects of the syndicate's operations: sourcing precursor chemicals, supervising the manufacturing process, arranging supply, and managing the proceeds of crime. A clandestine laboratory was found at a property in Ourimbah, along with more than 27 kilograms of methylamphetamine oil and hundreds of kilograms of precursor chemicals. The appellant himself was never physically present at the laboratory, which the sentencing judge found was consistent with his role as the apex director of the enterprise.

In February 2017, Buscombe DCJ sentenced the appellant in the District Court at Gosford to an aggregate term of 20 years imprisonment, with a non-parole period of 15 years, commencing 23 December 2013. The appellant sought leave to appeal on the sole ground that this aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 20 years imprisonment with a 15-year non-parole period was manifestly excessive having regard to all the circumstances of the offending and the offender.
  • Whether the indicative sentences for each count, and the aggregate sentence, fell within the available range for offending of this objective gravity.

Decision

Dhanji J (with whom Beech-Jones CJ at CL and R A Hulme J agreed) dismissed the appeal. The court found that the sentences imposed were within the available range and that no error warranting appellate intervention had been established.

The court examined the appellant's role carefully. He was found to be at the apex of the organisation, responsible for directing all aspects of a large, sophisticated, and profitable operation. The quantity of drugs involved, the commercial scale of the enterprise, the proceeds of crime count (involving nearly $1.2 million in cash), and the duration and sophistication of the offending all pointed to high objective gravity.

The court also considered a series of comparable cases involving drug manufacturing and supply at a large commercial quantity level. It noted that some sentences in those cases were higher, some lower, and that the differences in the nature of the offending, the offender's role, and the sentencing regime applicable at the time each case was decided limited their direct comparability. The court was satisfied that the comparator cases did not undermine its conclusion that the appellant's sentences were within the available range.

R A Hulme J added that the aggregate sentence was commensurate with the totality of the criminality disclosed by the agreed facts, emphasising the seriousness of all the offending taken together.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 20 years imprisonment with a 15-year non-parole period for directing a large commercial methylamphetamine manufacturing and supply syndicate fell within the available sentencing range.
  • A defendant's role at the apex of a sophisticated drug syndicate, organising precursor acquisition, directing manufacturing, and managing supply and proceeds, without being physically present at operational sites, is consistent with the highest level of culpability for such offences.
  • Comparator cases in manifestly excessive appeals carry limited weight where the nature of the offending, the offender's role, or the applicable sentencing regime differ materially from the case under review.
  • No error warranting appellate intervention was established merely because the sentencing judge imposed a heavy sentence; the standard from House v The King remains that appellate courts do not intervene unless the sentence falls outside the available range.
  • Under ss 24(2) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), manufacturing and supplying methylamphetamine in large commercial quantities each carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years, reflecting the legislature's assessment of the gravity of such offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32, 53A
- Crimes Act 1900 (NSW), ss 93T(1A), 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Bell v R [2019] NSWCCA 271
- Bugmy v The Queen (2013) 249 CLR 571
- Dinsdale v The Queen (2000) 202 CLR 321
- Dungay v R [2020] NSWCCA 209
- Grogan v R [2019] NSWCCA 51
- Hoskins v R [2021] NSWCCA 169
- House v The King (1936) 55 CLR 499
- Kwok v R [2018] NSWCCA 200
- Lewis v R [2021] NSWCCA 108
- Melikian v R [2008] NSWCCA 156
- Nasrallah v R [2021] NSWCCA 207
- Obeid v R [2017] NSWCCA 221
- R v Blanco [1999] NSWCCA 121
- R v Dashti [2016] NSWCCA 251
- R v MAK; R v MSK [2006] NSWCCA 381
- R v Millwood [2012] NSWCCA 2
- R v Osenkowski (1982) 30 SASR 212
- Sabra v Regina [2015] NSWCCA 38
- Shane Bradley Mitchell v R [2008] NSWCCA 192
- Taysavang v R; Lee v R [2017] NSWCCA 146