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11
Court of Criminal Appeal 11 May 2022

Patel v R

[2022] NSWCCA 93

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCES SENTENCE APPEAL ALLOWED

Citation: Patel v R [2022] NSWCCA 93
Court: Court of Criminal Appeal
Date: 11 May 2022
Judge(s): Brereton JA at [1]; N Adams J at [79]; Lonergan J at [87]

Background

The appellant pleaded guilty in the District Court at Lismore to attempting to possess marketable quantities of unlawfully imported MDMA. Three separate international mail consignments arrived from the Netherlands addressed to his post office box; the first contained approximately 75 g pure MDMA and became the principal count, while the second and third (totalling a further 74 g pure) were taken into account as additional matters. A quantity of MDMA found at his home formed a separate count of possessing a trafficable quantity.

The sentencing judge imposed an aggregate term of four years and six months imprisonment with a non-parole period of two years and eight months, backdated to account for periods of pre-sentence custody and quasi-custody spent in a residential rehabilitation programme. The appellant was 26 years old at the time of the offending and had supplied MDMA to a social circle, funding his own lifestyle through those sales.

The appellant sought leave to appeal the severity of his sentence on six grounds, arguing that the sentencing judge had failed to give proper weight to a range of mitigating factors, most significantly his contrition.

Legal Issues

  • Whether the sentencing judge gave adequate weight to the appellant's prior good character
  • Whether the unsophisticated method of importation was a mitigating factor
  • Whether the sentencing judge was entitled to find an accentuated need for general deterrence based on the local drug culture in the Northern Rivers region
  • Whether the appellant's drug use was properly characterised as a lifestyle choice rather than a childhood-acquired addiction
  • Whether the sentencing judge failed to take into account the appellant's contrition as a mandatory consideration under section 16A(2)(f) of the Crimes Act 1914 (Cth)
  • The appropriate sentence on resentencing, including whether an aggregate sentence was permissible for multiple Commonwealth offences

Decision

Ground 1 (prior good character): The Court found no appellate basis to intervene on this ground (at [26]). The sentencing judge had acknowledged the appellant's antecedents and character under section 16A(2)(m), but also applied the well-established principle that prior good character carries reduced mitigating weight in drug importation cases (at [24]). The repeated and planned nature of the importations, combined with evidence of broader drug supply, meant there was little scope for good character to operate as a material mitigating factor (at [25]).

Ground 2 (lack of sophistication): This ground failed. Brereton JA confirmed that the absence of sophistication is not a mitigating factor; it is merely the absence of something that would otherwise be aggravating (at [28]). The offending was both premeditated and deceptive, and the ease of the importation method supported the sentencing judge's conclusion that general deterrence required emphasis (at [28]).

Ground 3 (Northern Rivers deterrence): The Court upheld the sentencing judge's reasoning that a prevalent attitude to drug use in the region, supported by evidence in the appellant's own psychological report, warranted an accentuated need for general deterrence (at [33]). A judge who sits regularly in a locality may draw on general observations derived from that experience to inform sentencing, particularly where that experience is confirmed by evidence adduced by the parties (at [33]).

Ground 4 (lifestyle choice characterisation): The Court found the sentencing judge was correct in characterising the appellant's drug use as an adult lifestyle choice (at [39]). The psychological evidence described his early MDMA use as recreational and his later dependency as arising from immersion in a party scene as an adult. He had a happy childhood without trauma or abuse, and had been able to abstain for extended periods when travelling with his father (at [38]-[39]).

Ground 5 (contrition, mandatory consideration under s 16A(2)(f)): This ground succeeded. Section 16A(2)(f) of the Crimes Act 1914 (Cth) imposes a mandatory obligation on the sentencing court to take into account the degree to which an offender has shown contrition. The sentencing judge never used the words "contrition" or "remorse," never referred to section 16A(2)(f), and made no finding on whether remorse was established, despite both parties specifically addressing it in submissions (at [40], [52]). The Crown sought to rely on the judge's observation that the appellant was "still trying to downplay the extent of his criminal conduct" as an implicit finding, but the Court rejected this as sufficient (at [52]). The Court emphasised that remorse and rehabilitation, though related, are distinct concepts (at [40]). Remorse does not require an offender to abandon legitimate attempts to identify mitigating factors (at [51]). The strongest evidence of the appellant's contrition lay not in his words but in the concrete steps he had taken, including his guilty pleas, his extensive rehabilitation, and the documented impact his conduct had in serving as a "wake-up call" to his social circle (at [51]).

Resentencing: The Court imposed a total effective term of four years imprisonment, comprising three years and six months for Count 1 and fifteen months for Count 2, with a non-parole period of two years (at [75]-[76]). The Court took into account that ongoing incarceration would negatively affect the appellant's rehabilitation, that he was ineligible to access rehabilitation programmes in custody because of his low risk profile, and that the deterrent purpose of the sentence had already been partially served through his substantial rehabilitation and its effect on his peers (at [59], [70]). The Court also noted unresolved questions about whether section 68 of the Judiciary Act 1903 (Cth) picks up the NSW aggregate sentencing provision, and preferred to structure the sentences in accordance with section 19(2) of the Crimes Act 1914 (Cth) (at [71]-[74]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 8 March 2021 quashed
  • On Count 1: imprisonment for three years and six months, commencing 8 July 2020 and expiring 7 January 2024
  • On Count 2: imprisonment for fifteen months, commencing 8 January 2023 and expiring 7 April 2024
  • Non-parole period of two years fixed under section 19AB(2) of the Crimes Act 1914 (Cth), dating from 8 July 2020, with eligibility for release to parole on 7 July 2022

Key Takeaways

  • Under section 16A(2)(f) of the Crimes Act 1914 (Cth), contrition is a mandatory sentencing consideration. A sentencing judge's failure to address it, even when both parties have specifically argued it, constitutes an error justifying appellate intervention, regardless of whether reasons were delivered ex tempore (at [52], [82]).

  • Remorse and rehabilitation are distinct concepts in Commonwealth sentencing. A finding that an offender has made impressive rehabilitation efforts does not, without more, satisfy the obligation to consider contrition under section 16A(2)(f) (at [40]).

  • An offender's expressions of remorse are not negated simply because they continue to point to mitigating factors in the sentencing proceedings. Remorse does not require self-flagellation or the abandonment of legitimate mitigation arguments (at [51]).

  • The absence of sophistication in a criminal method is not a mitigating factor; it is merely the absence of a feature that would otherwise aggravate the offending. Premeditation and deception may coexist with an unsophisticated method (at [28]).

  • Where evidence before a sentencing court establishes that an offender's response to prosecution has served as a tangible deterrent within their social community, that effect can be taken into account as having partially served the sentencing purposes of general deterrence when the court comes to fix the appropriate sentence (at [70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth), ss s 16A(2)(f), 16BA, 19(2), 19AB, 19AD, 19AF, 19AG
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Code Act 1995 (Cth) s s 11.1(1), 302.4, 307.6
- Judiciary Act (Cth ), s 68
- Sentencing Act (NSW), s 53

Cases
- Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354
- Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
- Deakin v R [1984] HCA 31; (1984) 54 ALR 765
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
- Dunning v Tasmania [2018] TasCCA 21
- El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
- Eriyo v R [2015] NSWCCA 16
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; 272 ALR 465; 85 ALJR 195
- Huynh v R [2021] NSWCCA 148
- Jaafar v R [2017] NSWCCA 223
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Matthews v R [2014] VSCA 291; 44 VR 280; 246 A Crim R 193
- Mourtada v R [2021] NSWCCA 211; 290 A Crim R 514; (2021) 361 FLR 96
- Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556
- Onourah v R (2009) 76 NSWLR 1; 197 A Crim R 430; 234 FLR 377; 260 ALR 126; [2009] NSWCCA 238
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Power v R (1974) 131 CLR 623; 48 ALJR 297; 3 ALR 553; [1974] HCA 26
- Putland v R (2014) 218 CLR 174; [2014] HCA 8
- R v Faber [2020] SASCFC 49; (2020) 283 A Crim R 219
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Wat [2017] NSWCCA 62
- Robson-Bolan v R [2022] NSWCCA 1
- Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308
- Waterstone v R [2020] NSWCCA 117
- Woods v R [2020] NSWCCA 219