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Court of Criminal Appeal 18 November 2022

Sande v R

[2022] NSWCCA 236

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL MANIFEST EXCESS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Sande v R [2022] NSWCCA 236
Court: Court of Criminal Appeal, Supreme Court of New South Wales
Date: 18 November 2022
Judge(s): Meagher JA; Fullerton J; Ierace J

Background

The applicant was a 48-year-old man with a lengthy criminal history, including a prior conviction for supplying a large commercial quantity of ecstasy, for which he had served a custodial sentence. He was stopped by police in Guildford in October 2020 after a routine patrol, during which officers observed him drive off from a known address and fail to indicate. When police pulled him over, he appeared nervous and was found to be in possession of 42.95 grams of methylamphetamine concealed in a handbrake cover, along with digital scales, what appeared to be a drug ledger, cash, and a small quantity of heroin.

The applicant pleaded guilty in the Local Court to one count of supplying a prohibited drug (the methylamphetamine). Two additional matters were taken into account on a Form 1: possession of the heroin and dealing with suspected proceeds of crime (the $1,300 in cash). He received a sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 8 months, backdated to February 2021.

The applicant sought leave to appeal against the severity of that sentence, arguing it was manifestly excessive. The Court refused leave at the conclusion of the hearing in July 2022 and later published its reasons in November 2022.

  • Whether the sentence of 3 years and 6 months imprisonment was manifestly excessive in all the circumstances.
  • Whether the nominal starting point adopted by the sentencing judge fell outside the appropriate range, having regard to the sentencing judge's findings on objective seriousness and subjective factors.
  • Whether sentencing statistics and comparable cases cited by the applicant demonstrated that the sentence was unreasonable or plainly unjust.

Decision

Ierace J (with Meagher JA and Fullerton J agreeing) found that the sentence was not manifestly excessive and that there was no tenable basis on which it could be challenged. The Court was not persuaded that the nominal starting point fell outside the appropriate range when the full circumstances were considered.

The Court examined the sentencing statistics provided by the Judicial Commission and a table of comparable cases tendered by the applicant. After accounting for the dissimilarities between the comparable cases and the applicant's own circumstances, the Court concluded that neither the statistics nor the comparable decisions assisted the applicant in making out his ground of appeal.

The Court acknowledged that the applicant had made genuine and commendable efforts towards rehabilitation since his arrest, engaging with programs to address his entrenched drug use. However, it observed that the sentencing judge was still required to give significant weight to specific and general deterrence, which necessitated a term of imprisonment. The manner in which those competing considerations were balanced, including an allowance for time spent in quasi-custody during residential rehabilitation and a non-parole period representing only 48 per cent of the head sentence, was described as "sensible and appropriate."

Because the sentence was not arguable as unreasonable or plainly unjust, the appropriate disposition was to refuse leave rather than grant it and dismiss the appeal.

Orders Made

  • The application for leave to appeal is refused.

Key Takeaways

  • Refusing leave to appeal, the Court of Criminal Appeal confirmed that a sentence is only manifestly excessive where it is unreasonable or plainly unjust, and that a mere difference in outcome from comparable cases is insufficient to establish that threshold.
  • Sentencing statistics and tables of comparable cases may be tendered in support of a manifest excess argument, but their utility is limited where material dissimilarities exist between the cited cases and the case under review.
  • A sentencing court's obligation to address specific and general deterrence through imprisonment is not displaced by strong evidence of post-offence rehabilitation, even where that rehabilitation is genuine and sustained.
  • Where a sentencing judge allows credit for time in quasi-custody during residential rehabilitation and fixes a non-parole period that is generous relative to the head sentence, those features may themselves demonstrate that the sentence was appropriately calibrated rather than excessive.
  • An applicant's prior history of supplying prohibited drugs is a relevant circumstance that shapes the sentencing range, even where significant subjective factors are also present.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Administration of Sentences) Act 1999 (NSW), s 124I

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Donaghey v R [2015] NSWCCA 119
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pham v R [2017] NSWCCA 75
- Sahyoun v R [2020] NSWCCA 87
- Sahyoun v R (No 2) [2020] NSWCCA 95
- Vandeventer v R [2013] NSWCCA 33