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Court of Criminal Appeal 17 February 2022

Roiss v R

[2022] NSWCCA 25

Drugs
PAROLE PERIOD DUE TO DRUG ADDICTION

Citation: Roiss v R [2022] NSWCCA 25
Court: Court of Criminal Appeal, NSW
Date: 17 February 2022
Judge(s): McCallum JA (with Rothman J and Wright J agreeing)

Background

The appellant pleaded guilty in the District Court to seven charges of supplying prohibited drugs, including one count of supplying a commercial quantity of Lysergide (LSD), and one count of knowingly dealing with proceeds of crime involving $155,255 in cash. Three possession offences were taken into account on a Form 1. The offending came to light after police on foot patrol observed a drug transaction at Barangaroo and subsequently accompanied the appellant to his apartment and a private vault facility, where they discovered further drugs and the large cash sum.

King SC DCJ sentenced the appellant to an aggregate term of six years' imprisonment with a non-parole period of four years and six months, commencing 26 July 2019. The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive, that the sentencing judge failed to give adequate weight to assistance provided to police, and that special circumstances existed to justify a longer than usual parole period by reason of drug addiction.

  • Whether the sentencing judge erred by failing to apply a reduction under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for assistance provided to police.
  • Whether the aggregate sentence was manifestly excessive, having regard to personal hardship and background circumstances.
  • Whether special circumstances existed, by reason of the appellant's drug addiction, to reduce the non-parole period below the statutory proportion under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Ground 1: Assistance to police

The appellant argued that his cooperation, including admitting to his home address, facilitating access to the Guardian Vault, and making frank admissions during a police interview, warranted a sentencing reduction under s 23. The Court found that the sentencing judge, while not expressly invoking s 23, did consider the relevant conduct under the Ellis principle (drawn from R v Ellis (1986) 6 NSWLR 603) and gave the appellant credit for his co-operation. No appellable error was established in the treatment of this ground.

The Court also noted some factual confusion in the submissions: the claim that the appellant handed over his mobile phone was not supported by the agreed facts, which recorded that it was the drug buyer, not the appellant, who gave police access to the incriminating text messages. The remaining assistance, while genuine, was not of a character that compelled a separate or greater discount than the sentencing judge had already allowed.

Ground 2: Manifest excess

The Court acknowledged the appellant's difficult personal history, including childhood neglect, exposure to serious trauma, a deteriorating mental health condition, and escalating drug and gambling dependencies. The sentencing judge had accepted genuine remorse. However, the Court concluded that the overall criminality was plainly serious: the appellant was supplying a wide range of prohibited drugs for significant profit, held a commercial quantity of LSD, and possessed over $155,000 in cash proceeds of crime. The aggregate sentence was not found to be unreasonable or plainly unjust.

Ground 3: Special circumstances and drug addiction

The Court rejected the submission that the appellant's drug addiction constituted special circumstances justifying a greater reduction to the non-parole period. The sentencing judge had considered rehabilitation prospects and the appellant's addiction history. No error in the exercise of that discretion was demonstrated.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to cite s 23 of the Crimes (Sentencing Procedure) Act 1999 expressly does not necessarily constitute error, provided the substance of the co-operation is genuinely considered and reflected in the sentence imposed.
  • Under the Ellis principle, a discount for volunteering information to police applies where that co-operation is meaningful and goes beyond what the evidence already established; where its value is limited or already accounted for, no additional reduction is required.
  • Serious multi-charge drug supply offending, particularly involving a commercial quantity of a prohibited drug and substantial proceeds of crime, carries significant weight in the sentencing calculus that is not automatically displaced by evidence of personal hardship or a difficult background.
  • Drug addiction, without more, does not necessarily constitute "special circumstances" sufficient to alter the statutory non-parole period proportion under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of six years with a non-parole period of four years and six months fell within the range open to the sentencing judge on these facts.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Browning v R [2015] NSWCCA 147
- Howard v R [2019] NSWCCA 109
- Le v R [2019] NSWCCA 181