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Court of Criminal Appeal 4 March 2022

Taha v R

[2022] NSWCCA 46

Drugs
SENTENCE CUSTODY MORAL CULPABILITY UNDERSTANDING OF OFFENDING SENTENCE INDEPENDENT EXERCISE OF DISCRETION APPLICANT’S SUBJECTIVE FACTORS

Citation: Taha v R [2022] NSWCCA 46
Court: Court of Criminal Appeal, NSW
Date: 4 March 2022
Judge(s): McCallum JA, Walton J, Fullerton J

Background

The appellant was a 25-year-old man who pleaded guilty in the District Court to four charges of supplying cocaine, along with three additional drug offences taken into account on a Form 1, and three driving offences dealt with on a s 166 certificate. The offending involved the supply of approximately 60 grams of cocaine to more than 30 customers across Sydney between July and September 2019. The most serious charge involved ongoing supply for financial reward, carrying a maximum penalty of 15 years imprisonment.

The sentencing judge imposed an aggregate sentence of five years imprisonment with a non-parole period of two years and six months. The sentencing judge found special circumstances, meaning the non-parole period was a shorter proportion of the total sentence than the standard ratio. The applicant had a prior criminal history including a previous conviction for ongoing drug supply, and the most serious of the current offences was committed while he was subject to a Community Corrections Order.

The applicant sought leave to appeal on the grounds that the sentencing judge erred in accounting for pre-sentence custody, and failed to properly take into account his borderline intellectual functioning when determining the sentence.

  • Whether the sentencing judge erred in the manner she calculated or applied the applicant's pre-sentence custody.
  • Whether the sentencing judge failed to give adequate reasons for how the applicant's borderline intellectual functioning was taken into account.
  • Whether the sentencing judge failed to give that borderline intellectual functioning appropriate weight in reducing the applicant's moral culpability.
  • On resentence, what weight should be given to custodial hardships including the COVID-19 pandemic and a rat infestation in the prison, as well as the applicant's mental health and dietary considerations.

Decision

The Crown conceded Ground 1, accepting that the sentencing judge erred in the treatment of pre-sentence custody. That concession engaged the Court's jurisdiction to resentence. Grounds 2 and 2A, concerning the applicant's borderline intellectual functioning and moral culpability, were not conceded by the Crown and were not ultimately upheld by the Court. Because the psychiatric evidence had not been put to the sentencing judge as a basis for reducing moral culpability, it could not be said that failing to address it on that basis constituted error.

On resentence, the Court conducted an independent exercise of its discretion. Walton J, with whom Fullerton J agreed, found that the applicant's borderline intellectual functioning was a relevant subjective factor but did not, on the evidence presented, demonstrate a direct causal link between his cognitive limitations and the offending that would warrant a reduction in moral culpability. The Court accepted, however, that the applicant's mental health would make his experience of custody more onerous.

The Court gave weight to two specific custodial hardships arising after the date of the original sentence: the conditions imposed on prisoners as part of the response to the COVID-19 pandemic, and a rat infestation in the prison. These factors, together with the applicant's compromised mental health and the exacerbating effect the conditions had on that health, justified a reduction in the sentence otherwise appropriate.

Fullerton J added that only in exceptional circumstances would the Court on resentence take a different approach to evidence that had not been relied upon by counsel below. Her Honour accepted that while the trauma of childhood sexual abuse can have pervasive and disabling effects, she was not persuaded on the probabilities of a discernible link between the applicant's childhood trauma and his repeated commercial drug supply. She agreed, however, that the cumulative custodial hardships warranted additional leniency.

Orders Made

  • Leave to appeal granted; appeal against sentence allowed.
  • Sentence imposed in the District Court on 5 November 2020 quashed.
  • In lieu thereof, the applicant sentenced to an aggregate term of imprisonment of four years from 5 November 2020, with a non-parole period of two years and three months from 5 November 2020.

Key Takeaways

  • A Crown concession of sentencing error is sufficient to engage the Court of Criminal Appeal's resentencing jurisdiction, even where the other grounds of appeal are not upheld.
  • Where psychiatric or psychological evidence is not placed before a sentencing court as a basis for reducing moral culpability, it is not an error for the sentencing judge to omit that analysis; the Court of Criminal Appeal will generally not take a different approach to such evidence on resentence absent exceptional circumstances, consistent with the principle in Betts v The Queen.
  • Custodial hardships arising after the date of sentence, including the impact of the COVID-19 pandemic on prison conditions and a rat infestation, were accepted as factors warranting a reduction in the sentence that would otherwise be imposed.
  • A compromised mental health condition can make the experience of custody more onerous and may support a finding of special circumstances, even where the same condition does not independently operate to reduce moral culpability.
  • In dismissing the moral culpability grounds, the Court confirmed that a connection between an offender's cognitive or psychological limitations and the specific offending conduct must be established before those limitations will attract a reduction in culpability.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 2012 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
- Doudar v R [2021] NSWCCA 37
- Jackson v R [2021] NSWCCA 15
- RO v R [2019] NSWCCA 183
- AB v R [2014] NSWCCA 31
- Aslan v R [2014] NSWCCA 114
- Elchiekh v R [2016] NSWCCA 225
- Sutton v R [2016] NSWCCA 249
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
- R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361