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Court of Criminal Appeal 24 May 2023

Kochai v R

[2023] NSWCCA 116

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL OBJECTIVE SERIOUSNESS GROUND DISMISSED CRIMINAL LAW SENTENCE APPEAL MANIFEST EXCESS

Citation: Kochai v R [2023] NSWCCA 116
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2023
Judges: Button J, Wilson J, N Adams J (N Adams J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court to two offences arising from a covert police operation spanning approximately ten months. The first offence was dealing with property intending it to become an instrument of crime (the purchase of illegal cigarettes). The second was supplying a large commercial quantity of a prohibited drug, namely over 3 kilograms of cocaine supplied to an undercover operative across multiple meetings. A further count of possessing one gram of cannabis was taken into account on a Form 1.

The meetings involved a complex arrangement in which the applicant sometimes paid cash for the illegal cigarettes and sometimes exchanged cocaine instead. The applicant used five separate phones and communicated in code to avoid detection. He was arrested at the final meeting before a further intended supply could take place.

The District Court sentenced the applicant to an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years. The applicant then sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to expressly state an assessment of the objective seriousness of the offending conduct.
  • Whether the aggregate sentence was manifestly excessive, having regard in particular to the degree of accumulation applied and to comparable cases.

Decision

On the first ground, the Court confirmed that assessing objective seriousness is a critical component of sentencing, but a sentencing judge is not obliged to nominate a specific point on a scale of seriousness or to use the concept of "mid-range" offending. The sentencing judge had identified and detailed all factors relevant to the objective seriousness of the conduct. That was sufficient to discharge the judicial duty, and no error was established.

On the second ground, the applicant's complaint centred on the application of the totality principle, which requires a court imposing an aggregate sentence to ensure that the overall sentence is not disproportionate to the totality of the offending. The Court applied the established test: the question is whether the aggregate sentence was unreasonable or plainly unjust, not merely whether an appellate court might have imposed a different sentence.

The Court rejected the argument that the notional accumulation of one year (reflecting the instrument of crime offence running partly concurrently with the supply offence) produced an unjust outcome. Significantly, the Court observed that trading one illegal substance for another represents more serious criminality than trading an illegal substance for money. This distinction set the applicant's conduct apart from comparable cases in which drugs had been exchanged for cash.

The applicant also relied on Judicial Information Research System statistics and a number of cases said to be comparable. The Court found each of those cases distinguishable on factors including the size of discount afforded, the strength of subjective circumstances, quantity of drugs involved, and criminal history. None of them suggested the aggregate sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentencing judge is not required to label offending by reference to a point on a scale of seriousness or to invoke the "mid-range" concept, provided all relevant factors bearing on objective seriousness are identified and considered.
  • Trading one illegal substance for another illegal substance was treated by the Court of Criminal Appeal as more culpable than supplying an illegal substance in exchange for money, a distinction that influenced the assessment of comparative cases.
  • In dismissing the manifest excess ground, the Court reaffirmed that an aggregate sentence will only be set aside if it is unreasonable or plainly unjust, not merely because an appellate court might have structured it differently.
  • Comparable sentencing statistics and cases drawn from the Judicial Information Research System will not succeed on a manifest excess ground unless they demonstrate the sentence was unreasonable or plainly unjust; distinguishing factors such as discounts, subjective circumstances, and drug quantities are assessed carefully.
  • No error was found in applying the totality principle where the notional accumulation of one year reflected two distinct offences involving the same criminal enterprise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)

Cases:
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Merheb v R [2021] NSWCCA 224
- DH v R [2022] NSWCCA 200
- Naberezhnov v R [2021] NSWCCA 142
- Bektasovski v R [2022] NSWCCA 246
- Faraj v R [2022] NSWCCA 31
- Irmak v R; Dagdanasar v R [2021] NSWCCA 178
- Khoury v R [2020] NSWCCA 190
- McLean v R [2020] NSWCCA 344
- Hadler v R [2020] NSWCCA 305
- A v R [2020] NSWCCA 145
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Huang v R [2019] NSWCCA 144
- Lee v R [2019] NSWCCA 106
- Nye v The Queen [2018] NSWCCA 244
- Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Briouzguine v R [2014] NSWCCA 264
- Delaney v R; R v Delaney [2013] NSWCCA 150