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Court of Criminal Appeal 12 August 2024

Donnelly v R

[2024] NSWCCA 151

Drugs

Citation: Donnelly v R [2024] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 12 August 2024
Judges: Harrison CJ at CL, Garling J, Faulkner J (judgment delivered by Faulkner J, with whom the others agreed)

Background

The applicant pleaded guilty in the District Court to three drug offences under the Drug Misuse and Trafficking Act 1985 (NSW). The most serious charge was aiding and abetting the supply of not less than a large commercial quantity of gamma butyrolactone (GBL), a prohibited drug. The applicant's role in that offence was to store approximately 24.7 kilograms of GBL, an amount six times the large commercial quantity threshold, in a locked storage cage at a Rosebery apartment complex for another person, knowing that person would supply it once it was returned.

The applicant was also convicted of two counts of supplying a commercial quantity of prohibited drugs, involving further quantities of GBL and methylenedioxyamphetamine found in his vehicle and the storage cage. On 9 September 2022, the sentencing judge imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 3 months, commencing 30 March 2021.

The applicant sought leave to appeal against the sentence out of time, filing his notice of appeal late. The extension of time application and the appeal were heard together.

  • Whether the application for leave to appeal out of time should be granted
  • Whether the sentencing judge erred in assessing the objective seriousness of the count 1 (aiding and abetting supply) offending, specifically in failing to place it at the very bottom of the notional range
  • Whether the sentencing judge erred in not characterising the applicant as a "user dealer" in relation to count 1, as he had been in relation to counts 2 and 3
  • Whether the aggregate sentence of 8 years and 6 months was manifestly excessive

Decision

The Court granted the extension of time and leave to appeal but dismissed the appeal on both grounds.

On Ground 1, the Court rejected the applicant's argument that the count 1 offending should have been placed at the very bottom of the notional range of objective seriousness. The fact that the applicant acted as a "storeman" did not compel the conclusion that his role was minimal. It was open to the sentencing judge to characterise the applicant as a trusted participant in the supply operation and to assess the offending as falling below mid-range, having regard to all relevant circumstances. The sentencing judge's inability to assign a precise dollar value to the drugs did not prevent a proper assessment of objective seriousness.

On the "user dealer" characterisation, the Court found no error in the sentencing judge declining to apply that characterisation to the count 1 offending. The quantity involved was very large, and the circumstances of the applicant's role as custodian of a significant supply cache were distinguishable from the user dealer context applied to counts 2 and 3.

Ground 2, manifest excess, was pressed as a freestanding ground but relied almost entirely on the arguments advanced under Ground 1. Because no independent error was established in the objective seriousness assessment or the indicative sentence for count 1, and the applicant advanced no separate basis for finding the aggregate sentence unreasonable or plainly unjust, this ground also failed.

Orders Made

  • Extension of time for filing the Notice of Appeal granted (up until 23 April 2024)
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in a sentencing judge assessing a "storeman" role in a drug supply operation as falling below mid-range (rather than at the very bottom) of objective seriousness, where the quantity stored was six times the large commercial quantity threshold.
  • A "user dealer" characterisation applied to some counts does not automatically carry over to other counts involving materially different circumstances and significantly larger quantities.
  • The Court of Criminal Appeal confirmed that the sentencing judge's inability to place a precise dollar value on prohibited drugs does not preclude a valid assessment of objective seriousness.
  • In dismissing a manifest excess ground that was parasitic on an objective seriousness ground, the Court reiterated that appellants must advance independent reasoning if they wish the manifest excess ground to survive rejection of the underlying ground.
  • Under the House v the King (1936) 55 CLR 499 standard, an appellant must demonstrate specific error in the exercise of the sentencing discretion; it is not sufficient to contend that a different characterisation would have been open.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25 and 27
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23 and 54B(4)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- House v the King (1936) 55 CLR 499; [1936] HCA 40
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- BM v R [2023] NSWCCA 68
- Mulato v R [2006] NSWCCA 282
- R v Ferguson [2022] NSWCCA 147