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Court of Criminal Appeal 10 March 2021

Mori v R

[2021] NSWCCA 32

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE EXTENSION OF TIME IN WHICH TO APPEAL DRUG OFFENCES MANUFACTURE PROHIBITED DRUG

Citation: Mori v R [2021] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 10 March 2021
Judges: Johnson J, Davies J, Ierace J (judgment delivered by Ierace J)

Background

The applicant, a Canadian national, pleaded guilty in the District Court at Newcastle to three serious drug offences under the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a clandestine drug laboratory he operated in a remote holiday cabin in the Hunter Valley in January 2015, where police discovered over 33 kilograms of methylamphetamine undergoing a recrystallisation process, more than 20 grams of cocaine, and nearly 4.6 kilograms of a prohibited drug precursor stored at a separate Rockdale storage unit.

Judge Ellis sentenced the applicant in the District Court on 24 July 2017. The applicant sought to appeal against that sentence, but significant procedural delays followed. He filed his formal application for leave to appeal only on 5 November 2019, more than two years after the initial notice of intention to appeal, largely due to difficulties accessing the correct forms from prison and a mistaken belief that an earlier application had been lodged.

The Court of Criminal Appeal was required to consider whether to grant an extension of time before turning to the substantive grounds of appeal. The applicant appeared without legal representation on the application.

  • Whether leave to appeal out of time should be granted, given the significant delay in filing
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offence of manufacturing a large commercial quantity of methylamphetamine
  • Whether the sentencing judge gave an inadequate discount for the applicant's guilty plea
  • Whether the applicant's legal representation at the sentencing hearing was incompetent (the "incompetent representation" ground)
  • Whether a failure to allow the applicant to give evidence at the sentencing hearing constituted an error

Decision

Extension of time: The Court accepted the applicant's explanation for the delay, noting the genuine difficulties he faced accessing court forms from prison and his mistaken belief that his application had been properly filed. The extension of time was granted to 5 November 2019.

Objective seriousness: The Court found no error in the sentencing judge's assessment. The quantity of methylamphetamine, 33.43 kilograms, was more than 33 times the large commercial threshold of one kilogram, and the operation showed significant planning. Even accepting uncertainty about whether recrystallisation was aimed at purifying or cutting the drug, the sheer scale and organisation of the enterprise supported a finding of high objective seriousness.

Guilty plea discount: The Court rejected the submission that the discount given was inadequate. The plea was entered at a relatively late stage, and the sentencing judge had appropriately calibrated the discount to reflect the timing and utilitarian value of the plea. No error of principle was identified.

Incompetent representation and failure to give evidence: The Court dismissed both grounds. There was no evidentiary basis to find that the applicant's experienced criminal solicitor had acted incompetently. On the question of evidence, the applicant had not established that he instructed his solicitor he wished to testify or was prevented from doing so. The sentencing judge made no adverse finding against the applicant for choosing not to give evidence, and the factual findings were largely favourable to the applicant in any event. The ground concerning the structure of the total sentence was also rejected, with the Court noting the sentencing judge had correctly applied the principle of totality by deliberately staging sentence commencement dates to reflect the separate criminality involved.

Orders Made

  • Extension of time for the filing of the notice of appeal granted to 5 November 2019
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the quantity of a prohibited drug being a multiple of more than 33 times the large commercial threshold is a weighty indicator of high objective seriousness, even where some factual uncertainty exists about the precise process being conducted.
  • A guilty plea entered at a relatively late stage will attract a correspondingly limited discount, and no error arises simply because the discount was less than the maximum available.
  • Where a sentencing judge structures sentences with staggered commencement dates to reflect the separate criminality of multiple counts, that approach is consistent with the totality principle, not contrary to it.
  • No error of incompetent representation is established merely because an applicant is dissatisfied with the outcome of sentencing; clear and particularised evidence of deficiency in the legal representation is required.
  • Procedural delays in filing an appeal may be excused where an unrepresented applicant in custody demonstrates genuine and reasonable difficulty accessing the correct court forms, combined with an honest (if mistaken) belief that the filing had been completed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 25, Sch 1
- Drug Misuse and Trafficking Regulation 2011 (NSW), Sch 1

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46