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Court of Criminal Appeal 15 February 2023

Chu v R

[2023] NSWCCA 13

Drugs
CRIMINAL LAW SENTENCING LARGE COMMERCIAL DRUG SUPPLY RELEVANCE TO SENTENCING MORAL CULPABILITY DETERRENCE

Citation: Chu v R [2023] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 15 February 2023
Judges: Meagher JA, Harrison J, Hamill J (Hamill J delivering the principal judgment)

Background

The applicant was sentenced in the District Court in May 2021 to an aggregate term of nine years' imprisonment, with a non-parole period of six years, following guilty pleas to four drug supply offences committed on a single day in April 2020. The offences included the supply of large commercial quantities of cocaine (approximately 3,322 grams) and methylamphetamine (approximately 7,418 grams), a commercial quantity of gamma butyrolactone, and a smaller quantity of MDMA. The applicant received a 25 percent discount for his early guilty pleas.

The applicant's role in the offending was characterised as "warehousing": he stored the drugs on behalf of dealers for a period of about one month and received limited financial reward. His drug use and a diagnosed depressive illness were interrelated, and both arose after his former wife elected to terminate a pregnancy and the couple subsequently separated.

The appeal challenged the original sentence on four grounds, centred on whether the sentencing Judge properly accounted for the applicant's mental illness in assessing both his moral culpability and the weight to be given to general deterrence, and whether the overall sentence was manifestly excessive.

  • Whether the sentencing Judge erred by failing to take the applicant's depressive illness into account when assessing his moral culpability (Ground 1)
  • Whether the sentencing Judge erred by failing to reduce the weight given to general deterrence in light of the applicant's mental illness (Ground 2)
  • Whether his Honour erred in assessing the objective seriousness of one of the offences (Ground 3, confined in argument)
  • Whether the aggregate sentence was manifestly excessive (Ground 4)

Decision

Depressive illness and moral culpability (Ground 1): The Court held that the sentencing Judge was not in error on this ground. There is no obligation on a sentencing judge to expressly address mental illness in the specific terms of "moral culpability." His Honour had considered the applicant's mental health when assessing the applicant's role in the offences, and that assessment cannot be entirely divorced from the question of moral culpability. This ground was not established.

General deterrence (Ground 2) and manifest excess (Ground 4): The Court found that the sentencing Judge's remarks on general deterrence addressed commercial drug supply broadly, without any reference to the applicant's depressive illness. Well-established authority holds that mental illness can reduce the weight given to general deterrence as a sentencing consideration. Taking the applicant's circumstances as a whole, including no criminal history, good rehabilitation prospects, a limited warehousing role, absence of greed as a motive, and the commission of offences during a period of mental illness, the Court concluded the aggregate sentence was beyond the legitimate discretionary range. The Court found that either there was latent error producing the manifestly excessive sentence, or there was a specific failure to reduce the weight of general deterrence in light of the mental illness.

Objective seriousness (Ground 3): The Court considered it unnecessary to resolve this ground, noting only the deference ordinarily paid to sentencing judges' evaluative findings on objective seriousness.

Re-sentencing: The Court substituted an aggregate sentence of seven and a half years' imprisonment with a non-parole period of five years, commencing from the original date of 16 April 2020. For the eight summary drug possession offences on the section 166 certificate, the applicant was convicted without further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed in the District Court on 21 May 2021 quashed.
  • For the four principal supply offences (sequences 9, 15, 22 and 23): aggregate sentence of 7 years and 6 months, commencing 16 April 2020 and expiring 15 October 2027, with a non-parole period of 5 years expiring 15 April 2025.
  • For the eight summary offences on the section 166 certificate (sequences 41 to 48): convicted without further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Applicant eligible for release to parole at the conclusion of the non-parole period.

Key Takeaways

  • A sentencing judge is not required to expressly address a mental illness in terms of "moral culpability," provided the illness has genuinely been taken into account when assessing the offender's role and circumstances.
  • Where an offender suffers from a recognised mental illness at the time of offending, well-established authority requires that the weight given to general deterrence be reduced accordingly; a failure to apply that reduction can constitute error.
  • The combination of factors, including limited role, absence of a greed motive, no prior criminal history, good rehabilitation prospects, and the presence of mental illness, can together bring a sentence outside the legitimate discretionary range even for large commercial drug supply.
  • In dismissing the manifest excess ground on any single factor alone, the Court of Criminal Appeal confirmed that it was the cumulative effect of all mitigating circumstances, particularly the interplay between mental illness and general deterrence, that rendered the original nine-year aggregate sentence excessive.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction for summary offences without imposing any further penalty, a disposition available where additional punishment would be disproportionate in the context of an aggregate sentence for more serious matters.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(3), 32, 53A(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Berryman v R [2017] NSWCCA 297
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Egan v R [2017] NSWCCA 206
- Elsaj v R [2017] NSWCCA 124
- Glare v R [2015] NSWCCA 194
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- Prince v R [2020] NSWCCA 268
- R v Champion (1992) 64 A Crim R 244
- R v Chu [2021] NSWSDC 328 (decision under appeal)
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Israil [2002] NSWCCA 255
- R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unreported)