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Court of Criminal Appeal 21 June 2023

Salama v R

[2023] NSWCCA 141

DrugsTheft & propertyPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE JOINT SENTENCE HEARING OF CO OFFENDERS AT FIRST INSTANCE OFFENDER

Citation: Salama v R [2023] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 21 June 2023
Judges: Wright J, Wilson J, Fagan J

Background

The appellant was one of three co-offenders who shared a house in Wakeley that police identified as a clandestine methamphetamine laboratory. When police executed a search warrant, the appellant fled through a window, entered a neighbouring property, stole clothing from a washing line to change his appearance, and was ultimately found hiding in a garage. He was charged with two counts of possessing a precursor chemical with intent to use it in the manufacture of a prohibited drug, together with additional offences placed on Form 1 documents, including two counts of supply of a prohibited drug, stealing from a dwelling, and entering enclosed lands.

The appellant pleaded guilty and was sentenced in the District Court alongside his two co-offenders at a joint hearing. The sentencing judge imposed an aggregate sentence of four years' imprisonment with a non-parole period of two years and four months. Although separate statements of agreed facts and separate evidentiary material were tendered for each offender, all three were sentenced in the same proceedings.

The appellant sought leave to appeal on two grounds: that the sentencing judge had improperly used evidentiary material tendered only in relation to a co-offender, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred by taking into account evidentiary material that was not properly before the court in relation to the appellant, having been tendered only in connection with a co-offender at the joint hearing.
  • Whether the sentencing judge's finding that the appellant's offending fell "more towards the area of the mid-range" of objective gravity was available on the evidence properly before the court.
  • Whether the aggregate sentence of four years' imprisonment was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal on the first ground, accepting that the sentencing judge had made factual findings that drew on evidentiary material tendered only with respect to a co-offender, which was not properly before the court in relation to the appellant. This constituted an error in the sentencing process.

However, the error did not lead to a successful appeal. Wilson J undertook a re-exercise of the sentencing discretion on the basis of only that evidence properly before the court concerning the appellant. On that material, the offending remained of considerable objective seriousness. The appellant was in possession of all three precursor chemicals necessary to manufacture methylamphetamine, the premises were equipped for that purpose, and the quantities involved were substantial.

On the second ground, no error was established in characterising the offending as more towards the mid-range of objective gravity. The Court rejected the contention that the sentence was manifestly excessive. Indeed, Wilson J stated that on re-sentence, an aggregate term greater than that imposed at first instance would have been warranted, given the gravity of the offending and the appellant's very limited subjective case.

The appellant's subjective circumstances offered little mitigation. His lengthy criminal history, including multiple prior drug-related convictions, precluded the leniency that might otherwise have been extended. His minimisation of the offending when speaking to the author of the Sentencing Assessment Report, including claims that he had simply pleaded guilty to resolve the matter, significantly diminished the weight of his guilty pleas as a mitigating factor.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In joint sentence hearings involving co-offenders, separate evidentiary material tendered only in relation to one co-offender is not thereby available to support factual findings against another. Using such material constitutes a sentencing error.
  • Establishing a ground of error in the sentencing process does not automatically produce a lesser sentence on re-exercise. Where the properly available evidence still supports a sentence at least as severe as that imposed, the appeal will be dismissed.
  • A sentencing court's characterisation of objective gravity must be assessed against the evidence properly before it concerning the individual offender, not findings derived from material relevant only to co-offenders.
  • Minimisation of offending conduct in communications with the author of a Sentencing Assessment Report can substantially limit the mitigating weight afforded to a guilty plea and expressions of remorse.
  • Possession of all three precursor chemicals required to manufacture methylamphetamine, in premises equipped for that manufacture, is capable of being assessed as offending of considerable objective seriousness warranting strong personal deterrence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Crimes Act 1900 (NSW), s 148
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(B)

Cases:
- Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Higgins v R [2020] NSWCCA 169
- Martellotta v R [2021] NSWCCA 168
- Thorp v R [2022] NSWCCA 180
- McDowall v R [2019] NSWCCA 29
- JG v R [2023] NSWCCA 33
- Decision Restricted [2023] NSWCCA 10
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266