AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 8 September 2023

Chiarlini v R

[2023] NSWCCA 227

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS APPEAL DISMISSED

Citation: Chiarlini v R [2023] NSWCCA 227
Court: Court of Criminal Appeal, New South Wales
Date: 8 September 2023
Judge(s): Ward P, Harrison J, Dhanji J (all agreeing)

Background

The appellant was convicted in the District Court at Sydney, after a guilty plea in the Local Court, of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending involved mailing approximately 1.978 kilograms of methylamphetamine (at 74 to 76% purity, with an estimated street value of $360,000) from a shopping centre in Rhodes, NSW, to an address in Western Australia. The large commercial quantity threshold for methylamphetamine is 500 grams, meaning the quantity involved was nearly four times that threshold.

Police executed a search warrant at the appellant's residence in October 2021. Among items seized was an encrypted mobile phone, the password to which was recorded in the appellant's own iPhone. A separate offence of dealing with property suspected of being proceeds of crime was taken into account on a Form 1 (a procedural device under NSW law allowing related charges to be considered at sentencing without a separate conviction or punishment being imposed for them).

The sentencing judge imposed a total term of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 2 months, using a starting point of 7 years before applying discounts. The appellant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of 5 years and 3 months imprisonment (with a non-parole period of 3 years and 2 months) was manifestly excessive, having regard to all the relevant sentencing factors.
  • Whether the sentencing judge gave appropriate weight to the appellant's personal circumstances, including a traumatic childhood, diagnosed PTSD and Generalised Anxiety Disorder, the nexus between those conditions and the offending, and his conduct in custody.
  • Whether the sentencing judge correctly treated the Form 1 offence in the sentencing exercise.

Decision

The Court of Criminal Appeal, with all three judges agreeing with Dhanji J's reasons, dismissed the appeal. The Court found that no error could be inferred from the sentence imposed. Although the Court acknowledged it might have arrived at a different result, that consideration was not to the point: the relevant question was whether the starting point of 7 years was so high as to justify an inference of error, given that the sentencing judge had carefully identified and addressed all relevant considerations.

The Court accepted that the appellant's background was significant. The psychologist's report established a traumatic childhood involving family violence, multiple armed robberies, and subsequent diagnoses of PTSD and Generalised Anxiety Disorder. Consistent with Bugmy v The Queen (2013) 249 CLR 571, those matters did not diminish in weight simply because the offending occurred some time after the formative experiences. The Court also accepted there was a meaningful, though not determinative, nexus between those conditions and the offending.

On the Form 1 offence, the Court confirmed the correct approach: a Form 1 matter does not result in a separate punishment, but informs the weight to be given to personal deterrence and retribution for the principal offence. Given the large disparity between the maximum penalties for the two offences (life imprisonment versus 3 years), the Form 1 offence had limited prominence in the overall sentencing exercise. The sentencing judge's conclusion that it would not substantially increase the sentence for the main offence was endorsed.

The Court was ultimately not satisfied that any error could be inferred from the sentence. The objective seriousness of the offence, the degree of planning involved, the appellant's role in the enterprise, the quantity and purity of the drug, and general deterrence all supported the result. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the threshold question on a manifest excess ground is not whether the appellate court would have imposed a different sentence, but whether the sentence is so high as to justify an inference that the sentencing judge fell into error.
  • Traumatic childhood experiences and diagnosed psychiatric conditions (here, PTSD and Generalised Anxiety Disorder) remained relevant at sentencing, and their weight did not diminish over time merely because the offending occurred years after those formative events, consistent with the High Court's approach in Bugmy v The Queen.
  • A Form 1 offence does not attract separate punishment; rather, it informs the weight given to personal deterrence and retribution when sentencing for the principal offence, as established in the Attorney General's Application (No 1 of 2002) guideline judgment.
  • Where the maximum penalty for a Form 1 offence is vastly lower than that for the principal offence, the Form 1 matter will have limited prominence in the sentencing exercise.
  • A quantity of methylamphetamine nearly four times the large commercial quantity threshold, at high purity and substantial street value, dispatched through a planned arrangement, supported significant weight being given to general deterrence even where other mitigating factors were present.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R; [2013] NSWCCA 115
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34
- Melikan v R [2008] NSWCCA 156
- Decision Restricted [2019] NSWCCA 102