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Court of Criminal Appeal 5 April 2023

YM v R

[2023] NSWCCA 75

Drugs

Citation: YM v R [2023] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 5 April 2023
Judge(s): Kirk JA, Walton J, Sweeney J (judgment delivered by Sweeney J, with Kirk JA and Walton J agreeing)

Background

The applicant (referred to as "YM") operated an online drug importation and supply scheme using the dark web. He pleaded guilty in the Local Court to three counts of importing a commercial quantity of a border-controlled drug and three counts of supplying a large commercial quantity of a prohibited drug, with a further 14 offences taken into account on schedules and Form 1 documents. The drugs involved included MDMA, amphetamine, LSD, and other controlled substances.

YM suffered from long-standing depression and anxiety, which the sentencing judge found had some connection to his offending. He received a 50% discount on his sentences for his guilty pleas and other relevant factors.

The District Court imposed two aggregate sentences, partially accumulated, resulting in a total effective sentence of 14 years imprisonment with a non-parole period of 10 years. YM sought leave to appeal to the Court of Criminal Appeal on multiple grounds.

  • Whether the sentencing judge erred by failing to take into account the effect of the applicant's mental illness on his moral culpability and on the weight to be given to general deterrence (Ground 1)
  • Whether the sentencing judge made a factual error about the quantity of LSD the subject of one offence (Ground 2)
  • Whether the sentencing judge erred in assessing the objective seriousness of two of the offences (Ground 3)
  • Whether the resulting sentences were manifestly excessive (Ground 4)

Decision

Ground 1: Mental illness and sentencing principles. The Court found that the sentencing judge, having accepted some connection between YM's mental conditions and his offending, was then required to consider how that connection affected his moral culpability and the weight to be accorded to general deterrence as a sentencing objective. The failure to do so was a legal error. This ground succeeded on the question of moral culpability and general deterrence (sub-grounds (a) and (c)).

Ground 2: Factual error on LSD quantity. The Court held that the sentencing judge's finding that the quantity of LSD tabs in Count 2 was more than ten times the large commercial quantity was incorrect on the facts. This error was not merely technical: it materially affected the judge's assessment of the objective seriousness of that count and therefore infected the sentence imposed for it.

Ground 3: Objective seriousness of Counts 2 and 3. Because the only meaningful basis for differentiating the seriousness of Counts 2 and 3 from Count 1 was the quantity of drugs involved, and because the quantity finding for Count 2 was wrong, the Court concluded that the objective seriousness of Counts 2 and 3 could not properly have been assessed as more serious than Count 1 to the extent they had been. This ground also succeeded.

Ground 4 and resentencing. Given that Grounds 1, 2 and 3 all required resentencing, the Court did not find it necessary to separately address the manifest excess ground. On resentencing, the Court imposed two aggregate sentences partially accumulated, reducing the total effective sentence to 10 years imprisonment with a non-parole period of 6 years and 6 months. Special circumstances were found to justify a longer parole period, given the accumulation of sentences and the applicant's rehabilitation needs.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The aggregate sentences imposed in the District Court on 14 May 2021 are quashed.
  • For sequences 1, 2 and 3 (Commonwealth importation offences): aggregate sentence of 7 years imprisonment with a non-parole period of 3 years, commencing 14 February 2019, non-parole period expiring 13 February 2022.
  • For Counts 1, 2 and 3 (NSW supply offences): aggregate sentence of 7 years imprisonment with a non-parole period of 3 years and 6 months, commencing 14 February 2022, non-parole period expiring 13 August 2025.
  • The applicant is eligible for release to parole at the conclusion of that non-parole period.

Key Takeaways

  • Once a sentencing court finds a connection between an offender's mental illness and their offending, that finding carries sentencing consequences: the court must go on to consider its effect on moral culpability and on the weight to be given to general deterrence. A failure to do so is a legal error, not merely a discretionary oversight.
  • Factual errors about drug quantity are not merely technical matters. Where an incorrect quantity finding materially elevates a court's assessment of objective seriousness, it can infect the resulting sentence and constitute a ground of appeal.
  • The Court of Criminal Appeal confirmed that differentiation of objective seriousness between offences of the same type must rest on a sound factual foundation. Where the only available basis for differentiation is quantity, and the quantity finding is wrong, the differentiation cannot stand.
  • Special circumstances in the accumulation of sentences, combined with an offender's ongoing rehabilitation needs, can justify a longer period on parole relative to the total sentence.
  • Under the principles drawn from cases including R v Verdins, R v Engert, and Director of Public Prosecutions (Cth) v De La Rosa, a mental condition that causally connects to offending is a relevant factor at multiple points in the sentencing process, not simply a mitigating background matter.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 53A
- Criminal Code Act 1995 (Cth), s 307.1(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1914 (Cth), s 16BA

Cases:
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499
- Jeffree v R [2017] NSWCCA 72
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- R v Engert (1995) 84 A Crim R 67
- R v SS (a pseudonym) [2022] NSWCCA 258
- R v Verdins (2007) 16 VR 269
- R v Wright (1997) 93 A Crim R 48