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Court of Criminal Appeal 17 March 2023

XY (A Pseudonym) v R

[2023] NSWCCA 50

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE

Citation: XY (A Pseudonym) v R [2023] NSWCCA 50
Court: Court of Criminal Appeal, New South Wales
Date: 17 March 2023
Judges: Kirk JA, Harrison J, Wright J (Wright J delivering the principal judgment)

Background

The applicant (identified by pseudonym) pleaded guilty in the District Court to five offences: two counts of drug supply (commercial and large commercial quantities of methylamphetamine), two counts of possessing prohibited firearms without authority, and one count of possessing property reasonably suspected to be proceeds of crime. Six further offences were taken into account on a Form 1.

The offending arose from a police investigation between May and November 2017, centring on the applicant's drug supply activities in and around Coffs Harbour. The applicant operated as the principal in a one-man enterprise, wholesaling methylamphetamine and concealing drugs, cash (AUD $288,470), firearms and ammunition inside a drum. At the time of the offending, the applicant was subject to a parole order and carried a significant criminal history, including prior firearms and large commercial drug supply offences.

Acting Judge Blackmore SC imposed an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years. The total indicative sentences, before partial accumulation, amounted to 12 years and 9 months. A 50% discount was applied for the applicant's guilty plea and assistance to authorities. The applicant subsequently sought leave to appeal.

  • Whether the sentencing judge erred by applying the 50% sentencing discount to the aggregate sentence rather than to each of the individual indicative sentences before those sentences were partially accumulated.
  • Whether the aggregate sentence of 7 years and 6 months imprisonment was manifestly excessive in all the circumstances.

Decision

Ground 1: Application of the discount

Wright J examined the remarks on sentence in detail and concluded that the sentencing judge had, in fact, correctly applied the 50% discount to each indicative sentence individually. The indicative sentences that were then partially accumulated to produce the aggregate sentence each already reflected the discount. No error was established on this ground.

Ground 2: Manifest excess

Wright J assessed whether the aggregate sentence fell outside the range of sentences reasonably open to the sentencing judge, noting the high threshold that applies to manifest excess grounds. The Court considered that the aggregate sentence of 7 years and 6 months was only 18 months more than the longest single indicative sentence (6 years for the large commercial supply count), which demonstrated that the sentencing judge had genuinely grappled with totality and sought to avoid an excessive cumulative result.

The applicant put forward a range of comparative cases in support of the manifest excess argument. Wright J reviewed those cases but found no unifying principles emerging from them that demonstrated the aggregate sentence in this case was outside the available range. The Court found the sentence was neither unjust nor plainly unreasonable, particularly given the nature and scale of the drug supply, the presence of substantial cash and firearms, the applicant's criminal history, and the fact that he was on parole at the time of offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the aggregate sentencing regime in New South Wales, the proper approach is to apply any sentencing discount (for guilty plea or assistance) to each indicative sentence before those sentences are partially accumulated into an aggregate sentence, not to apply the discount to the aggregate figure after accumulation.
  • No error was established where a close reading of the remarks on sentence confirmed that the sentencing judge had followed the correct methodology, even where the judgment could have expressed the steps more clearly.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that comparative cases must disclose unifying principles before they can ground a successful challenge; a collection of individual examples without a principled thread will not suffice.
  • The relatively modest difference between the longest indicative sentence and the final aggregate sentence can serve as an indicator that the sentencing judge properly applied totality principles and avoided impermissible accumulation.
  • Offending involving large commercial drug supply, substantial proceeds of crime, and prohibited firearms, by a person on parole with a relevant criminal record, will attract a significant sentence even after a substantial discount for plea and assistance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 21A, 193(1), 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 11C(1), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 39(1), 62(1), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Aryal v R [2021] NSWCCA 2
- BB v R [2021] NSWCCA 283
- Benn v R [2023] NSWCCA 24
- Chartres-Abbott v R [2021] NSWCCA 239
- Davidson v R [2022] NSWCCA 153
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- He v Sun (2021) 104 NSWLR 518
- Hili v The Queen (2010) 242 CLR 520
- Huang v R [2019] NSWCCA 144
- JM v R [2014] NSWCCA 297
- McLean v R [2020] NSWCCA 344
- R v Li [2014] NSWCCA 327
- R v Mahmud [2010] NSWCCA 219
- Sahyoun v R [2020] NSWCCA 87
- Tiew v R [2020] NSWCCA 234
- Toole, Kurt v R (2014) 247 A Crim R 272
- TS v R [2022] NSWCCA 222
- Vaughan v R [2020] NSWCCA 3
- Vigo v R [2009] NSWCCA 98