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Court of Criminal Appeal 1 September 2023

R v Walker

[2023] NSWCCA 219

DrugsFirearms & weapons
CRIMINAL LAW APPEALS CROWN APPEAL AGAINST SENTENCE FINDINGS OF OBJECTIVE SERIOUSNESS APPEAL DISMISSED CRIMINAL LAW APPEALS

Citation: R v Walker [2023] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 1 September 2023
Judges: Leeming JA, Yehia J, Weinstein J

Background

The respondent pleaded guilty to four serious offences arising from a drug manufacturing and supply operation conducted at his rural property in April and May 2021. The offences included manufacturing a large commercial quantity of MDMA, supplying a large commercial quantity of methylamphetamine (over 4.3 kilograms), possessing an unauthorised pistol, and possessing a precursor chemical. Two of the sequences had additional offences attached on a Form 1, meaning those matters were taken into account at sentencing without separate convictions being recorded.

Police intercepted the group's communications and raided the property on 4 June 2021, arresting the respondent and his co-offenders. The intended market for the drugs was interstate.

On 20 February 2023, Flannery SC DCJ in the District Court at Port Macquarie sentenced the respondent to an aggregate term of 9 years imprisonment with a non-parole period of 6 years. The sentence incorporated a 25% discount for an early guilty plea and reflected a finding of special circumstances. The Crown appealed, contending the sentence was both wrongly assessed in terms of objective seriousness and manifestly inadequate.

  • Whether the sentencing judge erred in her assessment of objective seriousness for the manufacturing and supply offences (sequences 1 and 7)
  • Whether the aggregate sentence of 9 years was manifestly inadequate having regard to the total criminality involved
  • The proper approach to locating objective seriousness on a hypothetical "range" when sentencing

Decision

Ground 1: Objective seriousness

The Crown argued that the manufacturing offence should have been assessed as "above the mid-range" and the supply offence at "at or above the mid-range," while the sentencing judge found the manufacturing offence to be "within mid-range" and the supply offence "below the mid-range, but not appreciably so." The Court acknowledged these distinctions are inherently vague and imprecise. Leeming JA observed, however, that describing objective seriousness by reference to a range remains orthodox and useful: it promotes transparency, exposes the basis of the sentencing discretion, and can sharpen the parties' submissions. The competing positions here were only marginally apart, and no appealable error was established in the primary judge's assessment.

Ground 2: Manifest inadequacy

When reviewing an aggregate sentence, the relevant question is whether the sentence reflects the total criminality involved. The Court accepted that the 9-year sentence was lenient for offending of this gravity. Nevertheless, the respondent's subjective case was described as unusually strong. Relevant factors included his age, genuine remorse, low prospects of reoffending, absence of relevant prior convictions, his role as carer for his disabled wife, and evidence suggesting he suffered from a mild intellectual disability. Taking those factors together, the Court was unpersuaded that the sentencing discretion had miscarried.

The Court confirmed that the sentence, while lenient, was not unduly so. It remained within the range of appropriate sentences and did not constitute an affront to the administration of justice of the kind that would risk undermining public confidence in the criminal justice system. Both grounds of appeal were dismissed.

Orders Made

  • Leave granted for the applicant to rely on an additional ground of appeal
  • Appeal dismissed

Key Takeaways

  • In dismissing both grounds of appeal, the Court confirmed that a lenient sentence is not automatically manifestly inadequate: the question is whether it is unduly lenient when the full subjective case is properly weighed against the objective seriousness of the offending.

  • Locating objective seriousness on a hypothetical range (such as "mid-range" or "above mid-range") remains an orthodox and useful sentencing tool, even though such descriptions are inherently qualitative and imprecise. The imprecision does not make the approach wrong.

  • Where competing submissions on objective seriousness are only marginally apart, it will be difficult to establish an appealable error arising from the sentencing judge's choice between them.

  • For aggregate sentences, the applicable test is whether the aggregate reflects the total criminality involved, not whether each indicative component sentence would individually withstand scrutiny.

  • A strong subjective case, including factors such as a lack of relevant antecedents, genuine remorse, low reoffending risk, caring responsibilities, and a possible intellectual disability, can carry significant weight in resisting a Crown appeal based on manifest inadequacy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(2), 29
- Firearms Act 1996 (NSW), ss 7(1), 39(1)(a), 65(3)

Key Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 262; [2011] HCA 48
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bektasovski v R [2022] NSWCCA 246; 407 ALR 125
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Aryal v R [2021] NSWCCA 2
- Kapua v R [2023] NSWCCA 14
- Lloyd v R [2022] NSWCCA 18
- Kochai v R [2023] NSWCCA 116
- Kramer v R; R v Kramer [2023] NSWCCA 152