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Court of Criminal Appeal 30 September 2022

Morris v R

[2022] NSWCCA 207

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE ONGOING DRUG DEALING MANIFEST EXCESS PAROLE PERIOD AND HEAD SENTENCE

Citation: Morris v R [2022] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 30 September 2022
Judges: Kirk JA; Button J (primary judgment); Dhanji J

Background

The applicant, a 34-year-old Aboriginal man with a prior drug supply conviction, was sentenced in the District Court at Bourke on 24 March 2021 for ongoing supply of methylamphetamine under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). Three related offences were taken into account on a Form 1, a procedural mechanism allowing additional charges to be considered at sentencing without recording separate convictions.

The sentencing judge imposed a head sentence (the total term of imprisonment) of 2 years and 9 months, with a non-parole period of only 9 months. This produced a non-parole period representing just 27% of the head sentence, well below the standard statutory ratio of one-third. The judge found special circumstances justifying this departure, evidently giving significant weight to the applicant's strong subjective case, including real prospects of rehabilitation, family connections, and a history of personal hardship and trauma.

The applicant sought leave to appeal, arguing that the head sentence alone was manifestly excessive. As at the hearing date, the applicant had already been released on parole.

  • Whether the highly unusual sentence structure, specifically a non-parole period of only 27% of the head sentence, itself demonstrated error in the head sentence imposed.
  • Whether the head sentence of 2 years and 9 months was manifestly excessive, having regard to the small quantities of drugs supplied, the modest financial sums involved, and the applicant's many favourable subjective circumstances.

Decision

Button J, with whom Kirk JA and Dhanji J agreed, held that the unusual sentence structure did not, of itself, demonstrate any error in the head sentence. The real question was whether the head sentence was excessive on its own terms, not whether it stood in an unusual proportion to the non-parole period.

On the question of manifest excess, Button J acknowledged that the quantities supplied were very small, totalling grams across five transactions, and the proceeds modest, with most sales netting only $50. However, the objective features were not entirely trivial. The applicant had a prior conviction for drug supply, a significant criminal record more broadly, and had received $2,000 in cash found hidden in a vehicle at his property, pointing to commercial motivation. The sentencing judge had characterised the offending as motivated in part by "commercial gain and greed."

Button J also noted a legislative change, the Justice Legislation Amendment Act (No 2) 2019 (NSW), which commenced shortly after sentencing and may reflect a shifting parliamentary attitude toward low-level repeat supply offences. However, the mere possibility that different outcomes could follow from the exercise of sentencing discretion did not establish that this particular sentence was wrong.

Taking all circumstances together, including the criminal record, the commercial element, and the Form 1 offences, the Court found the head sentence was stern but not manifestly excessive.

Dhanji J added that different sentencing purposes carry different weight when setting a head sentence versus a non-parole period. It appeared the sentencing judge gave greater weight to the applicant's subjective case when fixing the non-parole period than when fixing the head sentence, which explained the unusual ratio. Dhanji J confirmed that a very unusual ratio may attract scrutiny, but the central question remains whether the head sentence (or non-parole period, if that is challenged) is itself excessive or inadequate, citing R v Simpson (2001) 53 NSWLR 704.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • An unusual ratio between a non-parole period and a head sentence, even one as low as 27%, does not automatically establish error in the head sentence; the question remains whether the head sentence is itself excessive or inadequate.
  • In dismissing the appeal, the Court confirmed that sentencing purposes can legitimately carry different weight when a judge sets a head sentence versus a non-parole period, meaning a dramatic departure from the standard ratio may be explicable without error.
  • Small quantities of drugs and modest proceeds do not render a head sentence manifestly excessive where the offending involves repeat conduct, a prior drug supply conviction, and evidence of commercial motivation.
  • Subsequent legislative amendments may indicate a changing parliamentary attitude toward low-level repeat supply offences, but the existence of that legislative shift does not itself establish that an earlier sentence fell outside the proper exercise of discretion.
  • Under R v Simpson, where an appeal challenges a head sentence, the focus of the Court's analysis is directed at the head sentence itself, not at the proportionality of the overall sentence structure.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 40
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Justice Legislation Amendment Act (No 2) 2019 (NSW)

Cases
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Bugmy v The Queen (2013) 249 CLR 571
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518