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Court of Criminal Appeal 5 July 2023

Lowe v R

[2023] NSWCCA 169

DrugsFraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE SENTENCING DISCRETION EXERCISED AFRESH WHETHER LESSER SENTENCE APPROPRIATE

Citation: Lowe v R [2023] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 5 July 2023
Judges: Ward P (principal judgment); Walton J and Ierace J (agreeing)

Background

The appellant was a 61-year-old pharmacist with no prior criminal record who pleaded guilty to two offences: dealing with property suspected of being proceeds of crime (under s 193C(1) of the Crimes Act 1900 (NSW)) and supplying a commercial quantity of methylamphetamine (under s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW)). Both offences occurred between March and June 2020, during which the appellant facilitated a drug supply enterprise by storing cash and drugs and obtaining methylamphetamine supplies on behalf of the enterprise's principal.

The District Court imposed an aggregate sentence of three years and nine months, with a non-parole period of two years and three months. The sentencing judge applied a 25% discount for early guilty pleas and made a finding of special circumstances, resulting in a non-parole period equivalent to 60% of the head sentence.

The appellant sought leave to appeal on five grounds, broadly contending that the sentencing judge failed to account for his motivation for offending, his assistance to authorities in respect of the proceeds offence, extra-curial punishment, bail conditions, and an error in how the guilty plea discount was applied. The Crown conceded error on two of the five grounds but maintained that no lesser sentence was warranted on resentencing.

  • Whether the sentencing judge erred by failing to make a finding on the appellant's claimed lack of financial motivation for offending
  • Whether the sentencing judge erred by failing to consider the assistance the appellant provided to authorities in relation to the proceeds of crime offence
  • Whether the sentencing judge erred by failing to account for extra-curial punishment and the effect of bail conditions
  • Whether the sentencing judge erred by applying the guilty plea discount to the aggregate sentence rather than to each indicative sentence individually, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether, if error was established, a lesser sentence was warranted on a fresh exercise of the sentencing discretion

Decision

Grounds 1, 3 and 4 (financial motivation, extra-curial punishment, bail conditions): Ward P addressed these grounds in obiter, as the appellant conceded they only required determination in the context of resentencing. On motivation, the sentencing judge's failure to make an explicit finding was not an error because the issue had not been squarely raised below and the evidence did not establish that the appellant's purpose was to obtain drugs for personal use. On extra-curial punishment and bail conditions, the Court found that neither the bail restrictions nor the sale of the appellant's pharmacy businesses was established to have caused any serious financial or other hardship warranting a sentencing reduction.

Ground 2 (assistance to authorities on the proceeds offence): The Court found error on this ground. Because the sentencing judge's reasons did not expressly address the assistance the appellant had provided in relation to the s 193C offence, it could not be concluded that this factor was taken into account when considering whether a discount applied. The Crown conceded this error, though only in relation to the proceeds offence.

Ground 5 (method of applying the guilty plea discount): The Court found a clear procedural error. Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea discount must be applied to each indicative sentence individually, not to the aggregate sentence as a whole. The sentencing judge had applied the discount incorrectly, which required a fresh exercise of the sentencing discretion.

Resentencing: Having identified error on grounds 2 and 5, the Court exercised the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601. Ward P recalculated the indicative sentences with a 30% discount applied to the proceeds offence (25% for the guilty plea plus 5% for assistance) and 25% applied to the supply offence. Even accounting for totality and the assistance discount on the proceeds offence, the Court concluded that no lesser sentence than the one originally imposed was warranted. The appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court imposing an aggregate sentence must apply any guilty plea discount to the indicative sentences individually, not to the aggregate term. Applying the discount to the aggregate is a legal error requiring resentencing.
  • Where a sentencing judge's reasons do not expressly address a claimed basis for discount (here, assistance to authorities), an appellate court cannot infer that the matter was considered. Silence on a squarely arguable mitigating factor may amount to error.
  • In dismissing the appeal despite identifying two errors, the Court of Criminal Appeal confirmed that establishing sentencing error does not automatically produce a more favourable result. A fresh exercise of discretion may still produce the same or a higher sentence.
  • Claims of extra-curial punishment and hardship caused by bail conditions require evidential support. The Court found these claims unsubstantiated on the facts, noting in particular that the sale of business assets was not established to have caused serious financial hardship.
  • Obiter observations on motivation for offending confirm that a defendant who seeks to characterise involvement in drug supply as driven by personal use rather than profit must squarely raise that claim with supporting evidence before the sentencing judge. Characterising conduct generally as that of a "street level user/dealer" is not sufficient to require an explicit finding on the issue.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 53A
- Crimes Act 1900 (NSW), ss 61, 193C
- Criminal Appeal Act 1912 (NSW), s 5
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- R v Holder [1983] 3 NSWLR 245
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- R v Ellis (1986) 6 NSWLR 603
- Ahmad v R [2021] NSWCCA 30
- Chiang v R [2016] NSWCCA 45
- Chong v R [2020] NSWCCA 235
- Elzein v R [2021] NSWCCA 246
- Masters v R [2019] NSWCCA 233