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Court of Criminal Appeal 18 March 2021

Kahler v R (Cth)

[2021] NSWCCA 40

Drugs
CRIMINAL LAW SENTENCE APPEAL PLEAS OF GUILTY PAROLE PERIOD OF 6 YEARS GROUNDS OF APPEAL NOT MADE OUT

Citation: Kahler v R (Cth) [2021] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 18 March 2021
Judge(s): Hoeben CJ at CL; Bellew J; Wright J

Background

The appellant pleaded guilty in the Local Court to two offences arising from his involvement in cocaine supply and importation in August and September 2016. He had swallowed 111 capsules containing 808.6 grams of pure cocaine before flying into Sydney from Thailand, and on an earlier occasion had supplied cocaine pellets to an associate. He was sentenced in the District Court to a head sentence of 8 years and 9 months, with a non-parole period of 6 years.

The appellant had significant subjective circumstances, including a history of mental health deterioration following personal losses, mounting debt to drug dealers, and good character references. The sentencing judge allowed a 25 per cent discount for early guilty pleas and found special circumstances justifying an extended non-parole ratio.

The appellant sought leave to appeal, challenging the sentence on two grounds: that the sentencing judge had failed to properly account for his good character and lack of prior relevant criminal history, and that the sentence for the importation offence was manifestly excessive.

  • Whether the sentencing judge failed to take into account the appellant's lack of prior relevant criminal antecedents and prior good character when imposing sentence.
  • Whether the sentence of 7 years and 9 months (with a 5-year non-parole period) for importing a marketable quantity of cocaine was manifestly excessive.

Decision

On the first ground, Hoeben CJ at CL was satisfied that the sentencing judge had, in substance, taken the appellant's good character into account despite not stating so in express terms. The Crown had submitted at the original hearing that any such finding was deserving of limited weight, and the Court was satisfied the sentencing judge accepted that submission. This distinguished the present case from BG v R [2020] NSWCCA 295, where error was found because the question of what weight to give to good character had been wholly overlooked.

On the second ground, the Court rejected the submission that the sentence was manifestly excessive. The appellant had imported a significant quantity of cocaine, facilitating large-scale international drug trafficking. The Court emphasised that a low position in a notional drug trafficking hierarchy does not make a courier's role insignificant: without the appellant performing his specific role, the importation could not have been effected.

Bellew J added that characterising an offender by reference to labels such as "courier" or "principal" must not obscure the proper assessment of what the offender actually did, citing The Queen v Olbrich. Both Bellew J and Wright J agreed with the orders proposed by Hoeben CJ at CL.

Orders Made

  • The application for leave to appeal against sentence is dismissed.

Key Takeaways

  • A sentencing judge's failure to state a finding of good character in express terms does not necessarily constitute error, provided the judgment as a whole demonstrates that the matter was considered and weighed.
  • Where the Crown submits at sentencing that good character is deserving of only limited weight, an implicit acceptance of that submission by the sentencing judge may be discernible from the reasons read as a whole.
  • Describing an offender as a "courier" or by other role labels does not, of itself, adequately capture the sentencing analysis. The Court of Criminal Appeal confirmed that courts must assess what the offender actually did, rather than relying on hierarchical characterisations.
  • A low position in a drug trafficking hierarchy does not equate to an insignificant role. The Court reaffirmed, citing Gwardys v R and Klomfar v R, that an importation offence cannot be effected without the person who physically carries the drugs.
  • No error was established in either ground of appeal, and both the treatment of good character and the length of the importation sentence were upheld as within the proper exercise of the sentencing judge's discretion.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Code (Cth), s 307.2(1)
- Crimes Act 1900 (NSW), s 93T(1)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases
- BG v R [2020] NSWCCA 295
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Gwardys v R [2019] NSWCCA 62
- Klomfar v R [2019] NSWCCA 61
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46