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Court of Criminal Appeal 15 July 2024

Pauls v R

[2024] NSWCCA 123

Drugs
SENTENCE — NO LESSER SENTENCE WARRANTED

Citation: Pauls v R [2024] NSWCCA 123
Court: Court of Criminal Appeal, NSW
Date: 15 July 2024
Judges: Mitchelmore JA (principal judgment); Kirk JA and Davies J (agreeing)

Background

The appellant pleaded guilty to four charges arising from a police investigation into large-scale drug supply in late 2020 and early 2021. The charges included two counts of supplying a prohibited drug in not less than a large commercial quantity and one count of supplying a prohibited drug in not less than a commercial quantity, both under the Drug Misuse and Trafficking Act 1985 (NSW), as well as knowingly participating in a criminal group under the Crimes Act 1900 (NSW). Three further offences were taken into account on a Form 1 (a document allowing a sentencing court to consider additional offences without recording separate convictions for them).

The offending centred on Gamma-Butyrolactone (GBL), a dangerous illicit substance. Police discovered nearly 7.7 kilograms of GBL stored in drums on premises adjacent to the appellant's address, substituted the drug with an inert substance, and then observed the appellant handle the drums and notice the switch. Intercepted communications subsequently revealed him negotiating the supply of further quantities of GBL, including facilitating the purchase and on-sale of 40 litres of the drug while directing associates and controlling the flow of $30,000 in cash.

The sentencing judge imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years, following a 25% discount for the guilty plea. The appellant sought leave to appeal on the ground that the sentencing judge failed to make findings on three mitigating factors: his remorse, his likelihood of reoffending, and his prospects of rehabilitation, despite both parties having made submissions and joined issue on each of those matters.

  • Whether the sentencing judge erred by failing to make express findings on the appellant's remorse, likelihood of reoffending, and prospects of rehabilitation, in circumstances where those matters were squarely in dispute.
  • Whether the inadequacy of the judge's reasons constituted appellable error under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
  • Whether, on resentencing, a lesser sentence than the one originally imposed was warranted.

Decision

The Court of Criminal Appeal accepted that the sentencing judge erred. The judge's reasons did not disclose what view he ultimately formed on each of the three contested mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Because the parties had joined issue on remorse, likelihood of reoffending, and prospects of rehabilitation, the Court could not infer from the reasons that the judge had considered and resolved those matters. Leave to appeal was granted.

On resentencing, Mitchelmore JA made the findings that had been omitted below. Her Honour found that, provided the appellant remained on his current trajectory, he would be unlikely to reoffend and had good prospects of rehabilitation. That finding was qualified, however, by the appellant's history of substance abuse and the escalation in seriousness represented by the present offences, which limited the mitigating weight those factors could carry.

Notwithstanding the error and the positive findings on rehabilitation, the Court concluded that no lesser sentence was warranted. The objective seriousness of the offending, the appellant's role as a principal directing the supply of very significant quantities of a dangerous drug, and the need for general deterrence, denunciation, and protection of the community together supported the original aggregate sentence of seven years with a four-year non-parole period. The appeal was dismissed.

Orders Made

  • Extension of time granted to file the application for leave to appeal, to 24 May 2024.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where parties make submissions and join issue on specific mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge is required to make express findings on each of those factors; reasons that merely acknowledge submissions without disclosing the judge's conclusions will constitute error.
  • The Court of Criminal Appeal confirmed that it cannot infer a sentencing judge's findings on contested matters where those findings are absent from the reasons, applying principles established in Lee, Matthew v R [2016] NSWCCA 146, Douglass v The Queen [2012] HCA 34, and related authorities.
  • Establishing an error in the sentencing judge's reasons does not automatically produce a lesser sentence on appeal; the Court of Criminal Appeal conducts its own resentencing exercise and may arrive at the same result if the objective circumstances and sentencing purposes support it.
  • In dismissing the appeal despite upholding the ground of error, the Court applied significant weight to general deterrence, denunciation, and community protection in the context of large-scale commercial drug supply, finding those considerations outweighed positive subjective factors.
  • Positive findings on rehabilitation and reoffending risk carry reduced mitigating weight where a defendant has a history of substance abuse and the present offending represents an escalation from prior conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 32
- Crimes Act 1900 (NSW), s 93T(1A)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases
- Bhatia v R [2024] NSWCCA 28
- Bott v R [2023] NSWCCA 255
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Kahler v R (Cth) [2021] NSWCCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lee, Matthew v R [2016] NSWCCA 146
- Masters v R [2019] NSWCCA 233
- R v Keyte (2000) 78 SASR 68
- R v Sami Dario (District Court (NSW), 23 April 2024, unreported)
- STB v R [2024] NSWCCA 36