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7
Court of Criminal Appeal 1 July 2022

R v Ferguson

[2022] NSWCCA 147

Drugs
SERIOUS DRUG SUPPLY OFFENCES

Citation: R v Ferguson [2022] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 1 July 2022
Judge(s): Ward P at [1]; R A Hulme J at [2]; Bellew J at [114]

Background

The respondent pleaded guilty in the District Court to a series of serious drug supply offences arising from activity across various Sydney suburbs between October 2019 and February 2020. The offences included the ongoing supply of a prohibited drug, multiple charges of supplying an indictable quantity of cocaine, two charges of supplying a large commercial quantity of a prohibited drug (11.24 kilograms of MDMA and 782.3 grams of methylamphetamine), possession of a prohibited drug, and dealing with suspected proceeds of crime.

The District Court imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 3 years and 3 months. The sentencing judge characterised both large commercial supply offences as falling "well below" the midrange of objective seriousness, and described the respondent's subjective case as a "crossroads case" and a "truly quite rare case" warranting significant leniency.

The Crown appealed to the Court of Criminal Appeal on the grounds that the sentencing judge had erred in assessing objective seriousness and that the resulting sentence was manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the two large commercial quantity supply offences (MDMA and methylamphetamine)
  • Whether the aggregate sentence of 6 years and 6 months was manifestly inadequate having regard to the totality of the offending

Decision

The Court of Criminal Appeal, per R A Hulme J (Ward P and Bellew J agreeing), held that the sentencing judge had erred in his assessment of objective seriousness. The prescribed large commercial quantity threshold for both MDMA and methylamphetamine is 500 grams. The respondent possessed MDMA for supply in a quantity more than 22 times that threshold. While quantity alone is not determinative, the Court found that the volume of drugs combined with the broader context of the offending warranted a characterisation of both offences as falling at the midrange of objective seriousness, not well below it.

The Court also rejected the sentencing judge's characterisation of the respondent's role as that of a mere street dealer with limited authority. Although the respondent was not at the top of the drug supply enterprise, the Court found his involvement was not insubstantial. He held an entrusted position, stored drugs at a dedicated safehouse, concealed drugs in a hidden compartment in his vehicle, and used an encrypted communications device, all of which indicated a meaningful degree of sophistication and engagement in the venture.

On the question of manifest inadequacy, the Court found the original sentence failed to adequately reflect the objective gravity of the offending and the sentencing purposes of deterrence and community protection. Although the respondent had a genuinely strong subjective case, that case did not justify an aggregate sentence that failed to proportionately reflect the seriousness of the total offending across multiple charges.

The Court exercised its discretion under section 5D of the Criminal Appeal Act 1912 (NSW) to intervene and resentence the respondent. It took into account the strong subjective circumstances and the need to allow for an extended parole period to support ongoing rehabilitation. The Court imposed an aggregate sentence of 10 years and 6 months imprisonment with a non-parole period of 6 years.

Orders Made

  • Leave granted to rely upon an additional ground of appeal.
  • Crown appeal allowed.
  • Sentence imposed in the District Court on 12 November 2021 quashed.
  • For the offence in sequence 18 (dealing with suspected proceeds of crime), the respondent is convicted but no further penalty is imposed.
  • For the offences in sequences 1, 4, 10, 15, and 19, and taking into account the offences listed on the Form 1 documents, the respondent is sentenced to an aggregate term of imprisonment of 10 years and 6 months with a non-parole period of 6 years, dating from 6 February 2020, with eligibility for parole from 5 February 2026.

Key Takeaways

  • A sentencing court's characterisation of objective seriousness must properly account for the scale of drug quantities relative to the prescribed statutory thresholds. Possessing MDMA for supply at over 22 times the large commercial quantity threshold was inconsistent with a finding that the offence fell well below the midrange of seriousness.
  • The use of operational measures such as a safehouse, concealed vehicle compartments, and encrypted communications devices can indicate a level of sophistication that elevates an offender's role beyond that of a low-level participant, even where the offender is not at the top of the supply chain.
  • Even a strong subjective case does not permit an aggregate sentence that fails to reflect the overall gravity and totality of multiple serious drug supply offences. The sentencing purposes of deterrence and community protection retain significant weight in this context.
  • The Court of Criminal Appeal confirmed it will exercise the residual discretion to resentence where maintaining adequate standards of punishment for serious drug supply offences is necessary to preserve public confidence in the administration of criminal justice.
  • An extended parole period, supported by a finding of special circumstances, remains an available mechanism to facilitate ongoing rehabilitation without compromising the need for a sentence proportionate to the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 25A
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(5AA), 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Khorami v R; R v Khorami [2021] NSWCCA 228
- R v Paxton [2011] NSWCCA 242; (2011) 219 A Crim R 104
- Pham v R [2013] NSWCCA 217
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Daher v R [2018] NSWCCA 287
- Kay v R [2019] NSWCCA 275
- Mulato v R [2006] NSWCCA 282
- R v Fakhreddine; R v Doudar [2004] NSWCCA 354; (2004) 147 A Crim R 422
- Mirza v R [2007] NSWCCA 248
- R v Shi [2004] NSWCCA 135