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Court of Criminal Appeal 10 June 2022

R v Boyd

[2022] NSWCCA 120

Assault & violenceDrugs
CRIME CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY SENTENCE WAS MANIFESTLY INADEQUA TE

Citation: R v Boyd [2022] NSWCCA 120
Court: Court of Criminal Appeal
Date: 10 June 2022
Judge(s): Macfarlan JA, Rothman J, Dhanji J

Background

The respondent pleaded guilty in the Local Court to five offences of supplying large commercial quantities of prohibited drugs (MDMA, methylamphetamine, amphetamine and ephedrine) and one count of assault occasioning actual bodily harm in company. Police had conducted 11 controlled purchases from him over approximately one year, recovering a total of 12.46 kilograms of prohibited drugs. The assault was committed against a fellow prisoner while the respondent was on remand for the drug offences.

The District Court sentenced the respondent to an aggregate term of 9 years' imprisonment with a non-parole period of 5 years and 9 months, after applying a 25% discount for an early guilty plea. The sentencing judge assessed the respondent as at least a mid-level drug dealer and described her prospects for his rehabilitation as "hopeful but realistically guarded."

The Crown appealed on the single ground that the aggregate sentence was manifestly inadequate, pointing to the volume and variety of drugs supplied, the respondent's role in the supply enterprise, and what it said was insufficient accumulation for the custodial assault offence.

Legal Issues

  • Whether the aggregate sentence of 9 years was manifestly inadequate, such that the Court of Criminal Appeal should intervene.
  • Whether the sentencing judge erred in her assessment of the objective seriousness of the drug supply offences.
  • Whether the sentencing judge double-counted subjective factors in finding special circumstances and reducing the non-parole period ratio.
  • Whether, if the sentence was manifestly inadequate, the Court should nonetheless exercise its residual discretion to dismiss the appeal rather than resentence.

Decision

Ground 1: Manifest inadequacy

The Court of Criminal Appeal held that the aggregate sentence was manifestly inadequate (at [201]). Rothman J identified the assault offence as the decisive factor: it was a discrete, brutal offence committed in custody, entirely separate from the drug supply conduct, and the aggregate sentence did not reflect adequate accumulation for it (at [202]). His Honour was more equivocal about the drug offences in isolation, finding that, standing alone, he would not have concluded those sentences were manifestly inadequate (at [202]).

Dhanji J agreed the sentence was manifestly inadequate, primarily because the aggregate failed to sufficiently reflect the additional punishment required by the assault offence, which was a brutal attack on a fellow prisoner in circumstances wholly divorced from the drug supply activity (at [216]). His Honour observed that the evidence did not clearly establish how far above courier level the respondent sat in the supply hierarchy, and that being above the lowest level of an organisation did not automatically place the offending in the mid-range of objective seriousness (at [215]).

Ground 2: Objective seriousness of the drug supply offences

The Court declined to find identifiable error in the sentencing judge's assessments of objective seriousness (at [136]). The conclusion of objective seriousness is an evaluative one, and provided the underlying facts are not in dispute, an appeal court can only intervene if that evaluation was not open on those facts. Here, the difference between the Crown's position and the sentencing judge's finding was, at most, a matter of semantics, and the finding was plainly open (at [136]).

Ground 3: Double-counting of subjective factors

The Court rejected the submission that the sentencing judge double-counted subjective factors when finding special circumstances and reducing the non-parole period ratio (at [195]). Rothman J confirmed that factors relevant to the head sentence will, of necessity, also bear on the fixing of a non-parole period, and that the relevant principles required the sentencing judge to consider the respondent's mental conditions and rehabilitation prospects in both exercises (at [195]-[196]).

Ground 4: Residual discretion

Notwithstanding its finding of manifest inadequacy, the Court declined to exercise its residual discretion to intervene and resentence (at [213]-[214]). Rothman J identified several considerations: the respondent's significant psychological vulnerabilities; the stress caused by the pending appeal over approximately 18 months; the particularly deleterious effect of pandemic-related prison restrictions on an offender with underlying mental health conditions; the absence of face-to-face contact with his young son, who was his primary motivation for rehabilitation; and the risk that increasing the sentence would disrupt an ongoing and apparently sincere rehabilitation process, contrary to the interests of the community (at [206]-[209]). The Crown had not negated the reasons for the residual discretion to be exercised in the respondent's favour (at [210]-[213]).

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Finding manifest inadequacy in a Crown appeal does not automatically result in resentencing. The Court of Criminal Appeal confirmed that once appealable error is established, the Crown must also negate the reasons why the court's residual discretion not to intervene should be exercised (at [210]-[211]). In this case, the respondent's psychological vulnerabilities, the duration of the appeal, pandemic conditions, and the risk of disrupting genuine rehabilitation collectively outweighed the case for intervention.

  • A sentencing court's conclusion as to objective seriousness is an evaluative one, not a bare statement of reasons. Where the primary facts are not in dispute and the conclusion is open on those facts, an appeal court cannot intervene merely because it would have evaluated those facts differently (at [135]-[136]).

  • Being above the lowest level of a drug supply hierarchy does not, without more, place an offender's conduct in the mid-range of objective seriousness. Dhanji J emphasised that the extent of the respondent's role above courier level was not clearly established on the evidence (at [215]).

  • Factors taken into account in fixing a head sentence will necessarily also be considered when fixing a non-parole period. The Court of Criminal Appeal confirmed that this does not constitute impermissible double-counting, because the same circumstances inform both the minimum custodial term and the appropriate mitigation in favour of rehabilitation (at [195]).

  • Where drugs are used by an offender to self-medicate for conditions arising from a deprived and traumatic upbringing, a sentencing court may treat that drug use as relevant to reduced moral culpability, diminished capacity for general deterrence, and prospects of rehabilitation, notwithstanding the general principle that voluntary drug use is not a mitigating factor (at [178]-[181]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes ( Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), s 5D
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25

Cases
- Abdul v R [2019] NSWCCA 18
- Assam v R [2019] NSWCCA 12
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- CMB v Attorney-General (NSW) (2015) 258 CLR 346; [2015] HCA 9
- Cullen v R [2014] NSWCCA 162
- Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
- Devaney v R [2012] NSWCCA 285
- Devaney v R [2012] NSWCCA 285
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194
- Dunshea v R [2016] NSWCCA 244
- Edmonds v R [2022] NSWCCA 103
- Faraj v R [2022] NSWCCA 31
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huang v R [2017] NSWCCA 312
- Jackson v R [2019] NSWCCA 101
- Kane v The Queen [2021] NSWCCA 250
- Leach v The Queen (2008) 183 A Crim R 1; [2008] NSWCCA 73
- Lloyd v R [2022] NSWCCA 18
- Matu v R [2019] NSWCCA 23
- McKinnon v R [2020] NSWCCA 106
- Naberezhnov v R [2021] NSWCCA 142
- Piao v R [2019] NSWCCA 154
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Fyffe [2002] NSWSC 751
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- R v Jeremiah [2016] NSWCCA 241
- R v Kazzi [2008] NSWCCA 77
- R v Osenkowski (1982) 5 A Crim R 394
- R v Thomson [2016] NSWCCA 56
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Yiu; R v Yau [2018] NSWCCA 155
- R v Yucel [2000] NSWCCA 532
- See v R [2020] NSWCCA 272
- Shi v R [2017] NSWCCA 183
- Tamer v R [2020] NSWCCA 333
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64