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5
Court of Criminal Appeal 16 December 2022

Blakeney v R

[2022] NSWCCA 277

Drugs
CRIME SENTENCE APPEAL AGAINST SENTENCE CUSTODY”

Citation: Blakeney v R [2022] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 16 December 2022
Judge(s): Bell CJ, Ward P, Wilson J (all agreeing)

Background

The appellant pleaded guilty in the Local Court to supplying a prohibited drug in not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence, which carries a maximum penalty of life imprisonment and a standard non-parole period of 25 years, arose from the appellant's participation in a cocaine preparation and supply operation run out of a garage in Kingsford between May and July 2020. On 16 occasions during that period, the appellant attended the garage and personally prepared 1.75 kilograms of cocaine for supply.

The appellant was sentenced in the District Court to 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months. His sentence commenced on 15 September 2021, making him eligible for parole on 14 June 2023. He sought leave to appeal, arguing the sentencing judge had made several errors.

The appellant had significant subjective circumstances, including complex mental health diagnoses (ADHD, PTSD, Autism Spectrum Disorder, anxiety, depression, and insomnia), a history of drug use connected to grief and trauma, and completion of a 12-month residential rehabilitation programme at a facility called Connect Global.

  • Whether the sentencing judge erred by failing to make an explicit finding about the appellant's prospects of rehabilitation
  • Whether the sentencing judge erred by failing to make an explicit finding about whether the appellant had shown remorse
  • Whether the sentencing judge failed to take into account the totality of the appellant's mental health diagnoses
  • Whether the sentencing judge's discretion miscarried in allowing credit for only 30% (rather than 50%) of the time spent in residential rehabilitation as "quasi-custody" (that is, bail conditions sufficiently restrictive to warrant some reduction in the sentence served)

Decision

The Court of Criminal Appeal dismissed the appeal, refusing leave on grounds 1, 3, and 4, and granting leave but dismissing the appeal on ground 2 (remorse).

On rehabilitation and mental health (grounds 1 and 3), the Court found no appellable error. The sentencing judge had expressly considered the appellant's subjective circumstances, including his mental health conditions and completion of rehabilitation. A failure to use the word "rehabilitation" explicitly does not constitute error where the subject matter has plainly been addressed. Leave to advance these grounds was refused.

On remorse (ground 2), the Court accepted that a finding of remorse should have been made, given the Sentencing Assessment Report recorded the appellant's apparent remorse. However, the Court found this error had caused no practical injustice. The sentencing judge had given the appellant substantial credit for his subjective case overall, and the absence of a specific remorse finding did not produce a sentence that was manifestly inadequate or excessive. The appeal was dismissed on this ground despite leave being granted.

On quasi-custody (ground 4), the Court found the sentencing judge's allowance of 30% credit for time spent at Connect Global was well open to her, and may even have been generous given how much weight the successful completion of rehabilitation had already received in the subjective case. The residential facility, described in promotional materials as offering swimming pools, tennis courts, and fishing, was plainly not equivalent to custodial detention. The Court found the proposed ground rested on a mistaken understanding of both the sentencing judge's remarks and the applicable law, and refused leave to advance it.

Orders Made

  • Leave to advance grounds 1, 3, and 4 refused
  • Leave to appeal otherwise granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to use the precise word "rehabilitation" provided the subject matter has been addressed in the sentencing remarks; failure to do so will not constitute appellable error where the substance has been engaged with.
  • Where a finding of remorse ought to have been made but was omitted, the omission will not ground a successful appeal if the overall sentence reflects adequate consideration of the offender's subjective case and no injustice results.
  • Under the quasi-custody principle, a court must have an evidentiary foundation establishing the nature, kind, and effect of any restrictions on liberty before granting credit for bail conditions; the more favourable the conditions of a residential facility, the less likely they are to qualify as quasi-custody warranting significant credit.
  • In dismissing the appeal, the Court confirmed that the extent of any quasi-custody allowance is a discretionary matter for the sentencing judge, and an appellate court will not intervene merely because a different allowance might have been made.
  • No error was established in the sentencing judge's treatment of the appellant's complex mental health diagnoses, even where multiple conditions were present, provided the overall picture had been considered.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Apulu v R [2022] NSWCCA 244
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Gould v Director of Public Prosecutions (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109
- Imbornone v R [2017] NSWCCA 144
- La v R [2021] NSWCCA 136
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Quinlan (2021) 293 A Crim R 253; [2021] NSWCCA 284
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- Robertson v R [2017] NSWCCA 205
- Wong v R [2018] NSWCCA 263