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Court of Criminal Appeal 1 April 2022

Borg v R

[2022] NSWCCA 70

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCE EXERCISE OF DISCRETION APPLICANT’S SUBJECTIVE FACTORS

Citation: Borg v R [2022] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 1 April 2022
Judge(s): Beech-Jones CJ at CL; N Adams J; Lonergan J (primary reasons)

Background

The applicant pleaded guilty in the District Court at Penrith to three counts of manufacturing the prohibited drug MDA (3,4-methylenedioxyamphetamine) at commercial and large commercial quantities. He operated a concrete pumping business from a factory unit, which police covertly monitored, and also manufactured drugs at his family home. An aggregate sentence of 11 years and 10 months imprisonment was imposed by Judge Turnbull SC in October 2019, with a non-parole period of 7 years and 10 months.

The applicant sought leave to appeal on a single ground: that the sentence proceedings were infected by a factual error concerning the number of tablets manufactured on Count 2. The signed agreed facts document tendered at the plea hearing recorded 3,000 to 4,000 tablets for that count. However, at the sentencing hearing, an unsigned and different version was tendered, stating the quantity as "no less than 10,000" tablets. The sentencing judge sentenced on the basis of the incorrect higher figure.

The Crown conceded both the error and that it had the capacity to affect the sentence, but initially maintained that no different sentence should be imposed. The Notice of Appeal was filed in September 2021, requiring an extension of time, which the Court granted given the explanation provided.

  • Whether leave to appeal should be granted and whether an extension of time should be allowed
  • Whether the use of incorrect agreed facts (overstating pill quantity for Count 2) constituted a miscarriage in the sentencing proceedings
  • Whether the Court should re-sentence, and if so, what the appropriate sentence was having regard to objective seriousness, subjective factors, hardship in custody, and special circumstances

Decision

The Court granted the extension of time and leave to appeal, accepting that the wrong version of the agreed facts was before the sentencing judge and that this error had the capacity to affect the outcome on Count 2. Because the Crown conceded the error, the Court proceeded to re-sentence the applicant rather than simply quashing and remitting.

On re-sentence, the Court assessed the correct quantity for Count 2 as 3,000 to 4,000 tablets, which remained above the large commercial quantity threshold. The objective seriousness of the offending remained high across all three counts, with the applicant identified as the principal figure responsible for manufacturing operations at both his business premises and family home over the relevant period.

The Court gave weight to a range of subjective factors, including the applicant's guilty plea (attracting a 15 per cent utilitarian discount), low risk of reoffending, strong rehabilitation prospects, continued positive conduct in custody, and genuine remorse borne out by his actions since sentencing. Hardship in custody arising from COVID-19 conditions was also taken into account as a relevant subjective circumstance, consistent with the approach taken in comparable decisions.

Special circumstances were found, based on the applicant's exceptional family situation, prior drug abuse history requiring ongoing supervision, and the need to support his continued rehabilitation in the community. The corrected sentence was an aggregate term of 10 years and 6 months, with a minimum term of 7 years.

Orders Made

  • Extension of time to file the Notice of Appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Applicant re-sentenced to an aggregate sentence of 10 years and 6 months imprisonment, backdated to 27 July 2017
  • Minimum (non-parole) term of 7 years, expiring 26 July 2024
  • Head sentence expiring 26 January 2028
  • Indicative sentences: Count 1: 3 years 6 months (NPP 2 years 3 months); Count 2: 9 years 6 months (NPP 6 years); Count 3: 7 years 6 months (NPP 5 years)

Key Takeaways

  • Where formally agreed facts are superseded by an unsigned and inconsistent document at sentence, and the sentencing judge proceeds on the incorrect version, this constitutes a miscarriage of the sentencing proceedings capable of grounding a successful appeal.
  • The Court of Criminal Appeal confirmed that the quantity of drug manufactured is a material sentencing factor, and that overstating quantity in agreed facts can affect the exercise of sentencing discretion even where the correct quantity still exceeds the statutory threshold.
  • A 15 per cent discount for the utilitarian value of a guilty plea was applied on re-sentence, consistent with established principle.
  • Hardship experienced in custody due to COVID-19 conditions was taken into account as a subjective mitigating factor, consistent with the approach in cases such as Taha v R [2022] NSWCCA 46 and Young (a pseudonym) v R [2021] NSWCCA 3.
  • Special circumstances justifying a reduced proportional non-parole period can be established by a combination of factors, including exceptional family circumstances, prior drug dependency, and the need for structured post-release supervision to support rehabilitation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes Act 1900 (NSW), s 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v R (1936) 55 CLR 501
- Kentwell v The Queen (2014) 252 CLR 601
- Newman (a pseudonym) v R [2019] NSWCCA 157
- R v Girard [2004] NSWCCA 170
- Taha v R [2022] NSWCCA 46
- Young (a pseudonym) v R [2021] NSWCCA 163