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Court of Criminal Appeal 14 June 2023

Nunez v R

[2023] NSWCCA 136

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE APPLICANT RAISED IMPACT OF COVID WHERE SUBMISSIONS ADDRESSED THEN CURRENT AND POTENTIAL FUTURE IMPACTS

Citation: Nunez v R [2023] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 14 June 2023
Judges: Simpson AJA, Garling J, Ierace J (unanimous)

Background

The applicant pleaded guilty in the Local Court to four drug supply offences: supplying a commercial quantity of GBL, and three counts of ongoing supply of prohibited drugs (heroin and GBL). The offending involved nine separate transactions with an undercover police operative conducted between November 2019 and January 2020, with the applicant receiving approximately $64,950 in exchange for the drugs. Four further offences were taken into account on Form 1 documents.

In the District Court, Townsden DCJ imposed an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 4 years and 8 months, commencing 31 January 2020. The applicant received a 25 per cent discount on each indicative sentence for his early guilty pleas.

The applicant sought leave to appeal out of time, explaining that delays in securing legal aid and funding legal representation caused the late filing. The respondent did not oppose the question of leave being determined on the merits.

  • Whether the sentencing judge erred by failing to have regard to the impact of the Covid-19 pandemic on the applicant's conditions of imprisonment when determining the appropriate sentence.
  • Whether that failure, if established, justified a reduction in the aggregate non-parole period.
  • Whether special circumstances existed warranting a departure from the standard ratio of non-parole period to head sentence.

Decision

Ierace J (with whom Simpson AJA and Garling J agreed) upheld the single ground of appeal. The Court found that the sentencing judge had failed to have regard to the impact of the Covid-19 pandemic on the applicant's custodial conditions, even though submissions on that issue had been placed before the sentencing court.

The applicant's affidavit described significant hardship arising from pandemic restrictions during custody: frequent lockdowns, loss of in-person contact with his children, and difficulties accessing his treating psychologist (who was supposed to see him every six to eight weeks). He had been prescribed antidepressant medication as a result of anxiety and depression. The respondent did not dispute those matters.

The Court found special circumstances were established on two bases: the applicant's need for ongoing mental health and drug treatment upon release, and the onerous custodial conditions caused by the pandemic. Those factors justified a lower non-parole period relative to the total term of imprisonment.

The Court maintained the same head sentence of 7 years and 9 months but reduced the aggregate non-parole period from 4 years and 8 months to 4 years. All other findings of the sentencing judge, including the 25 per cent discount, the assessment of remorse, character, rehabilitation prospects, moral culpability, and objective seriousness, were left undisturbed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Townsden DCJ on 27 November 2020 quashed.
  • Applicant resentenced to an aggregate term of 7 years and 9 months imprisonment, backdated to commence 31 January 2020 and to expire 30 October 2027, with an aggregate non-parole period of 4 years, expiring 30 January 2024.

Key Takeaways

  • A sentencing court's failure to have regard to documented Covid-19 custodial hardship, where submissions on the point were before the court, constituted appealable error in this case.
  • The Court of Criminal Appeal confirmed that pandemic-related custodial conditions can form part of the basis for a finding of special circumstances, justifying an adjustment to the ratio of the non-parole period to the head sentence.
  • Onerous custodial conditions caused by the pandemic, combined with an offender's ongoing need for mental health and drug treatment upon release, were accepted together as establishing special circumstances here.
  • No reduction to the total head sentence followed from the error; the correction was limited to a reduction in the non-parole period from 4 years and 8 months to 4 years.
  • Undisputed affidavit evidence from the applicant describing the practical impact of pandemic restrictions (including restricted access to psychological treatment and loss of contact visits) was the evidentiary basis on which the Court acted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McKinnon v R [2020] NSWCCA 106
- R v Pickard [2023] NSWCCA 7
- SF v R [2022] NSWCCA 216
- Wass v R [2022] NSWCCA 143