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Court of Criminal Appeal 16 October 2024

Taybah v R

[2024] NSWCCA 182

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE NO ERROR DEMONSTRATED

Citation: Taybah v R [2024] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 16 October 2024
Judges: Bell CJ, Davies J, Wright J

Background

The applicant pleaded guilty in the Local Court to a series of serious drug offences, including supplying a large commercial quantity of cocaine (over 10 kilograms), three counts of supplying a commercial quantity of cocaine, and two counts of knowingly dealing with the proceeds of crime. The total cash found in connection with the offending exceeded $1.8 million, and the drugs were linked to two separate police operations targeting organised drug supply networks in Sydney.

The applicant was sentenced in the District Court to an aggregate term of 11 years' imprisonment, with a non-parole period of 7 years commencing 15 December 2020. He sought leave to appeal that sentence to the Court of Criminal Appeal, requiring also an extension of time to file the application.

The central argument on appeal was that the sentencing judge had overlooked critical matters relevant to the objective seriousness of the offending, particularly regarding drugs and cash found at an Orchard Road premises in Bass Hill.

  • Whether the sentencing judge failed to take into account critical matters relevant to the objective seriousness of the offending, specifically: the applicant's alleged withdrawal from the arrangement to store drugs and money; the allegedly reluctant nature of his possession; and the alleged disproportion between his reward and the risks he assumed.

Decision

Davies J (with Bell CJ and Wright J agreeing) dismissed the appeal. The Court found that the sentencing judge had properly considered all matters relevant to objective seriousness, including the quantity and purity of the drugs, the dissemination of drugs into the community, and the amounts of money involved. The sentencing judge had also acknowledged the difficulty of precisely identifying the applicant's role, but found he played a significant and integral part in the offending network and was not acting under duress.

Importantly, the Court found that the three "critical matters" raised on appeal had not actually been put to the sentencing judge in those terms. There was no submission at the sentencing hearing that the applicant had withdrawn from the arrangement, that his reward was incommensurate with the risks he assumed, or that there was no true meeting of minds regarding the drugs and cash at the Orchard Road premises. There was also no evidence supporting a claim of withdrawal; on the contrary, drug paraphernalia and cash found at the applicant's subsequent Farrell Road premises indicated that his involvement in the network continued.

The Court also addressed the sentencing judge's treatment of the applicant's moral culpability. The sentencing judge had reduced moral culpability to a limited degree, noting that his offending was motivated partly by his cocaine addiction rather than purely by greed. Davies J held this was not an error: it was appropriate to connect that motivation to moral culpability, and the reduction it produced was modest. A comparison the applicant drew with the offender in R v Ferguson was found to be of limited assistance, as that offender faced different charges and, notably, was not charged with two counts of dealing with proceeds of crime, which adequately explained the slightly longer aggregate sentence in the present case.

Orders Made

  • Time for filing the application extended to 1 July 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established where the sentencing judge addressed all submissions actually made at the sentencing hearing; arguments raised for the first time on appeal, without evidential foundation at first instance, will not ordinarily ground a successful appeal.
  • A finding that an offender acted at the direction of others but was not under duress was treated as a sufficient response to submissions about the "striking" nature of his alleged reluctance or discomfiture.
  • Reducing moral culpability on account of drug addiction (as a partial motivating factor) is not an error in principle, provided the reduction is modest and properly connected to culpability rather than objective seriousness.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a comparison between sentences imposed on co-offenders or analogous offenders must account for differences in the actual charges faced; distinct offences on the indictment can legitimately account for variations in aggregate sentences.
  • Where an applicant seeks to demonstrate that a sentence is excessive by reference to another case, the comparison must be capable of being related to the specific ground of appeal and the particular matters said to have been ignored by the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 (supply of prohibited drugs)
- Crimes Act 1900 (NSW), s 193B (knowingly dealing with proceeds of crime)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16 (possession of prescribed/restricted substances)

Cases:
- R v Ferguson [2022] NSWCCA 147