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Court of Criminal Appeal 28 August 2023

Su v R

[2023] NSWCCA 207

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE METHAMPHETAMINE COMMERCIAL QUANTITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Su v R [2023] NSWCCA 207
Court: Court of Criminal Appeal, NSW
Date: 28 August 2023
Judges: Adamson JA at [1]; Ierace J at [12]; Sweeney J at [86]

Background

The applicant was sentenced in the District Court to 9 years and 10 months' imprisonment, with a non-parole period of 6 years, for attempting to possess a commercial quantity of methamphetamine that had been unlawfully imported. The offending related to a November 2018 shipment intercepted at Port Botany, where Australian Border Force officers found approximately 394.9 kilograms of pure methamphetamine concealed within 71 car bonnets inside a shipping container consigned from Malaysia.

The applicant's observed role in the joint criminal enterprise was confined to two occasions. On the first, he handed a co-offender $20,000 in cash and a SIM card to facilitate communication with the freight forwarder. On the second, he gave another co-offender $600 to purchase tools for disassembling the importation. The sentencing judge found the applicant to be an "essential component" of the enterprise, with a role greater than both co-offenders, though lesser than those directing and controlling the overall operation.

The applicant sought leave to appeal his sentence, pressing two grounds: that the sentence was manifestly excessive, and that the sentencing judge either erred in assessing the objective seriousness of the offence or failed to make any discernible finding about it at all. Two further grounds were abandoned before the appeal was heard.

  • Whether the sentence of 9 years and 10 months' imprisonment was manifestly excessive having regard to all objective and subjective circumstances.
  • Whether the sentencing judge erred in assessing the objective seriousness of the offence.
  • Whether the sentencing judge was required to make an explicit, scaled finding as to objective seriousness (for example, by using formulations such as "in the mid-range" or "objectively very serious"), and whether the failure to do so amounted to a discernible error.

Decision

Objective seriousness (Ground 2). The Court found that the sentencing judge had, in substance, assessed the objective seriousness of the offence, even though his Honour did not deploy conventional scaling language such as "objectively very serious" or "in the mid-range." The sentencing judge expressly considered the two principal factors relevant to that assessment: the quantity of the drug (more than 526 times the commercial quantity threshold, at 79% purity) and the applicant's role within the enterprise. By recounting these factors in a manner that revealed his assessment, the sentencing judge sufficiently discharged the relevant aspect of the sentencing function.

The Court confirmed, across both the reasons of Adamson JA and Ierace J, that sentencing judges are not required to express their assessment of objective seriousness using any particular form of words. The task is to identify and assess the relevant factors, not to affix a precise label or position on a scale. This is particularly so for offences that do not carry a standard non-parole period. The correct approach remains instinctive synthesis: identifying all relevant factors, including those bearing on objective seriousness, and weighing them together. No error was established.

Manifest excess (Ground 1). The applicant's manifest excess argument rested largely on the premise that the sentencing judge had assessed objective seriousness as low. The Court rejected that premise for the reasons given on Ground 2. Manifest excess is a conclusion that a sentence is unreasonable or plainly unjust, and the applicant did not discharge the onus of establishing that here. The Court also noted that the sentencing judge's reserved remarks were comprehensive, nuanced, and candid, including in their treatment of contested factual matters and the distinct roles of co-offenders. No basis was found to conclude that the sentencing judge had felt constrained by the co-offenders' sentences or been subconsciously affected by adverse credibility findings.

The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to express the assessment of objective seriousness using a particular form of words or by placing the offending on an explicit scale. Recounting the relevant factors in a manner that indicates the assessment is sufficient.
  • For offences without a standard non-parole period, it is neither necessary nor desirable to fix objective seriousness on a numerical or categorical scale. The correct approach is instinctive synthesis of all relevant factors.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that manifest excess is a conclusion, not merely an argument, and requires the applicant to demonstrate that the sentence was unreasonable or plainly unjust.
  • No error was established in the sentencing judge's treatment of objective seriousness, and the finding that the applicant was an "essential component" of the enterprise was open on the evidence, supporting a sentence that was not assessed as reflecting low objective seriousness.
  • A reserved, comprehensive sentencing judgment that carefully delineates factual findings and engages with competing arguments will be difficult to challenge on appeal, particularly where the grounds of appeal are premised on a mischaracterisation of the sentencing judge's findings.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 307.5
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Bresnahan v R [2022] NSWCCA 288
- Qiu v R [2022] NSWCCA 247; (2022) 373 FLR 183
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Harris [2015] NSWCCA 81
- Howard v R [2019] NSWCCA 109