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Court of Criminal Appeal 20 May 2022

Care v R

[2022] NSWCCA 101

Drugs
CRIME SENTENCE APPEAL OPERATION OF PRE NON APPEAL UPHELD RESENTENCE.

Citation: Care v R [2022] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 20 May 2022
Judges: Macfarlan JA, Walton J, Rothman J (judgment delivered by Rothman J)

Background

The appellant pleaded guilty in the Local Court, before committal, to a serious drug supply offence involving over 1,100 grams of methylamphetamine, along with a dealing in proceeds of crime charge and several other drug supply offences taken into account on a Form 1. The offending involved coordinated activity across multiple properties, supported by surveillance evidence, DNA evidence, and the recovery of significant quantities of drugs and cash.

The District Court sentenced the appellant to an aggregate term of six years and nine months imprisonment, with a non-parole period of four years and nine months. The appellant received a 25% discount on his sentence for his early guilty plea.

The appellant sought leave to appeal on three grounds, arguing that the sentencing judge made errors in relation to the appellant's deprived background, rejected unchallenged evidence from his mother about childhood abuse, and failed to take account of his remorse.

  • Whether the sentencing judge mistook the facts regarding the extent of the appellant's deprived background, causing the sentencing discretion to miscarry
  • Whether the sentencing judge erred in declining to accept the unchallenged and uncontroverted evidence of the appellant's mother regarding abuse suffered between the ages of 7 and 13
  • Whether the sentencing judge erred by failing to take into account the appellant's remorse as a mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court of Criminal Appeal upheld the appeal, finding that the sentencing judge had misstated the extent of the appellant's deprived background. The sentencing judge's remarks characterised the deprivation as more limited than the evidence actually supported, and this misstatement constituted a factual mistake that caused the sentencing discretion to miscarry.

On the second ground, the Court found it was an error for the sentencing judge to decline to act on the mother's affidavit evidence concerning childhood abuse when that evidence was unchallenged and uncontroverted. A sentencing court is not free to simply disregard uncontested evidence of this kind without sound reason.

The Court also found error on the third ground. Remorse, where established, is a mandatory consideration under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing judge's failure to treat it as a mitigating factor, in circumstances where the evidence supported a finding of genuine remorse, was a further error.

Having established error on all three grounds, the Court proceeded to resentence the appellant. In doing so, it gave appropriate weight to the appellant's background, the unchallenged evidence of childhood abuse, and his demonstrated remorse, arriving at a materially reduced sentence.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court on 17 December 2020 quashed
  • Appellant resentenced to an aggregate sentence comprising a non-parole period of 3 years and 6 months commencing 22 June 2019 and concluding 21 December 2022, with the balance of term being 1 year and 9 months concluding 21 September 2024

Key Takeaways

  • A sentencing court's misstatement of the extent of an offender's deprived background constitutes a factual error capable of causing the sentencing discretion to miscarry, warranting appellate intervention under the principles in House v The King (1936) 55 CLR 499.
  • Unchallenged and uncontroverted evidence tendered at sentence, such as an affidavit from a family member about childhood abuse, cannot simply be disregarded by a sentencing judge without sound reason; non-acceptance of such evidence in the absence of challenge is itself an error.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), remorse is a mandatory consideration in sentencing. Where evidence supports a genuine finding of remorse, a sentencing judge's failure to treat it as a mitigating factor constitutes a specific error going to the exercise of the sentencing discretion.
  • The principle confirmed in Bugmy v The Queen (2013) 249 CLR 571, that the effects of a deprived background do not diminish with the passage of time, remained relevant to the resentencing exercise here.
  • In resentencing after upholding all three grounds, the Court of Criminal Appeal significantly reduced the non-parole period, reflecting the cumulative weight of the mitigating factors that the primary judge failed adequately to address.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), ss 93T(1), 193C(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- Devaney v R [2012] NSWCCA 285
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Morrison v R (2009) 197 A Crim R 103; [2009] NSWCCA 211
- Qutami v R (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Baker [2001] NSWCCA 85
- R v Care; R v Al-Khateib [2020] NSWDC 856
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wong v The Queen (2001) 207 CLR 584