AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 5 October 2022

R v Newman

[2022] NSWCCA 218

Drugs

Citation: R v Newman [2022] NSWCCA 218
Court: Court of Criminal Appeal, NSW
Date: 5 October 2022
Judge(s): Ward P (principal judgment); Davies J and Fagan J (agreeing)

Background

The applicant pleaded guilty in the Local Court to nine drug and related offences and was sentenced in the District Court at Sydney in November 2021. The offences included three counts of supplying prohibited drugs (methylamphetamine) on an ongoing basis, one count of supplying an indictable quantity of purported methylamphetamine, and two proceeds-of-crime offences. A further three lesser supply offences attracted separate community correction orders.

The applicant had supplied illicit drugs to customers in the Moree area. Police intercepted his mobile communications over approximately seven months in 2019 to 2020, recording at least 25 individual supplies of methylamphetamine. The sentencing judge characterised him as a mid-level drug supplier motivated by financial gain rather than personal addiction.

The sentencing judge imposed an aggregate sentence of five years and six months imprisonment, with a non-parole period of three years, representing 54.5% of the head sentence. Each offence attracted a 25% discount for the guilty pleas. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentencing judge correctly applied findings of remorse when determining the sentence
  • Whether the 25% guilty plea discount was applied to indicative sentences or to the aggregate sentence
  • Whether a psychologist's report, not tendered at first instance, should be admitted as fresh evidence on appeal
  • Whether the sentence failed to properly account for parity with a related co-offender's sentence
  • Whether the aggregate sentence of five years and six months was manifestly excessive

Decision

Remorse: The Court found no basis for complaint regarding the sentencing judge's treatment of remorse. The findings made at first instance were, if anything, favourable to the applicant, so no error was established on this point.

Guilty plea discount: The Court rejected the suggestion that the 25% discount had been misapplied to the aggregate rather than to the indicative sentences. The sentencing judgment made sufficiently clear what the indicative sentences would have been before the discount was applied. The earlier decision in Connell v R [2020] NSWCCA 352 was distinguished on the facts.

Fresh psychological evidence: The Court declined to admit a psychologist's report that had not been placed before the sentencing court. The report was based largely on the applicant's own self-reporting and it had not been established that it could not have been obtained through reasonable diligence before sentencing. Critically, the report sought to raise a materially different case on appeal. The report attributed the applicant's conduct to family dysfunction and psychological trauma, whereas the case presented at first instance emphasised strong family connections and support as positive indicators for rehabilitation. No miscarriage of justice warranted departure from the general rule that sentence appeals are determined on the material before the sentencing court.

Parity and manifest excess: No parity ground had been raised at first instance, and leave was not sought to add one on appeal. On the manifest excess question, the Court reviewed comparable sentencing decisions and concluded that the indicative sentences, and the resulting aggregate, fell within the appropriate range for this level of offending. The relatively low non-parole ratio of 54.5% (against the statutory default of 75%) reflected a significant degree of leniency directed at the applicant's rehabilitation. The applicant failed to establish that the sentence was unreasonable or plainly unjust, and leave to appeal was refused.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • New evidence tendered for the first time on a sentence appeal faces a high threshold: it must generally relate to events occurring after sentencing, or be necessary to prevent a miscarriage of justice, and the applicant must show it could not have been obtained with reasonable diligence before the sentencing hearing.

  • A psychological report that is inconsistent with the case advanced at first instance is unlikely to be admitted on appeal; raising a new and different basis for reduced moral culpability at the appellate stage is a significant obstacle to admission.

  • Appellate intervention on a manifest excess ground is warranted only where the sentence is so far outside the available range that some misapplication of sentencing principle must be inferred. A sentencing judge's wide discretion allows considerable flexibility within consistent principles.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that care must be taken when using sentencing statistics as a comparator for ongoing supply offences, given the varied factual circumstances that can underlie such charges.

  • Where parity arguments are not raised at first instance, an appellate court will be reluctant to treat them as live grounds of appeal absent a formal leave application to advance specific error.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25 and 25A
- Crimes Act 1900 (NSW), ss 193B and 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1) and 6(3)
- Confiscation and Proceeds of Crimes Act 1989 (NSW), ss 18(1) and 29(1)

Key Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Connell v R [2020] NSWCCA 352
- Barnes v R [2022] NSWCCA 140
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Linden v R [2017] NSWCCA 321
- Burke v R [2022] NSWCCA 6
- JJ v R [2020] NSWCCA 165
- Abousleiman v R [2021] NSWCCA 110
- O'Neile v R [2018] NSWCCA 291