Burns v R

[2010] NSWCCA 279

Court of Criminal Appeal (NSW)|2010-11-11|Before: Simpson J, Kirby J, Latham J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-11-11

Before

Simpson J, Kirby J, Latham J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

The applicant's personal circumstances 7 The applicant did not give or call oral evidence in the sentencing proceedings. It appears that he relied upon the business name search and the business card to permit an inference that he was engaged in legitimate business activity. No pre-sentence report or psychological report was before the court. Very little information about the applicant was made available to the sentencing judge. During the course of sentencing submissions, the judge was told that the applicant had "several" children, the youngest of whom was 15 months of age. 8 The applicant was born in May 1956, and was 53 years of age at the time of the offences. He had a criminal record which includes a number of motor vehicle associated offences, and some offences of dishonesty. Most significantly, in 1995, he was convicted of two counts of knowingly taking part in the supply of a prohibited drug, in respect of each of which he was sentenced to imprisonment for 2 years and 6 months, commencing on 27 January 1995, and an offence of (deemed) supply of a prohibited drug, in respect of which he was sentenced to imprisonment for 5 years, with a non-parole period of 3 years, commencing on 27 July 1997. Appeals against all sentences were dismissed. His counsel told Murrell DCJ that he had been released on parole in 2000.

[2]

The remarks on sentence 9 The sentencing judge recounted the facts and the little that was known to her of the applicant's personal circumstances. She said that she had been informed that the applicant had an excavation and carting business, but had no information about the extent of any such business. She also noted that she had been informed, during the course of sentencing submissions, that the applicant had "several" children, and the age of the youngest. She said that, although she had also been told that the applicant had undertaken some drug and alcohol courses whilst in custody, she had no evidence or information that he was addicted to illicit drugs. 10 She then observed, correctly, that the drug offence was of considerable objective seriousness, and recognised the need, because the offence is one to which Pt 4 Div 1A of the Sentencing Procedure Act applies, to determine where in the range of objective seriousness it lay. In this respect (that is, in determining where on the range of objective seriousness the offence of drug supply lay), she noted, in the applicant's favour, that the quantity of drug in his possession was "very marginally" over the threshold that constitutes a commercial quantity (250 grams). However, other factors militated against the applicant in this regard. Having considered all of the circumstances, her Honour concluded that it was "very plain" that the applicant had the drug in his possession for the purpose of actual supply, and that the applicant was involved "in the business of drug supply" for profit, and that his possession on this occasion was not an isolated episode. In reaching this conclusion she took into account:

[9]

Her Honour expressed doubt about the applicant's prospects of rehabilitation. 12 She then turned her attention to s 21A of the Sentencing Procedure Act. The aggravating factors that she took into account were that the applicant has a record of previous convictions for like matters, and that the offence of drug supply was planned and organised and was committed for financial gain. 13 She found little in the way of mitigating factors, repeating her earlier stated doubts about the applicant's prospects of rehabilitation. She said that the only mitigating factor upon which the applicant could rely was the plea of guilty, by reason of which she allowed a reduction of 25 percent on the sentence she would otherwise have imposed. 14 She dealt then with the first of the money laundering counts, involving the $2350 in the applicant's possession at the time of his arrest. By reason of the amount of money, she regarded this as "a relatively minor matter", and determined, in those circumstances, that it would be appropriate to impose a sentence to be served concurrently with that to be imposed in respect of the drug offence. 15 She regarded the second money laundering offence as "of greater seriousness", because of the amount of money involved. She noted that both parties had invited her to infer that the money was related to the supply of prohibited drugs. She also noted that that money "was packaged in a very professional way". She held it to be "a matter of significance" as distinct from "of grave seriousness". 16 She determined that the sentence imposed in respect of that offence would be partially cumulative upon the sentence for the drug offence. 17 She then proceeded to impose the sentences mentioned above. In sentencing in relation to the drug supply offence, she said that the starting point was of 9 years imprisonment, which she reduced by 25 percent to 6 years and 9 months, and which she then accumulated upon the second money laundering offence by 15 months. In the result, the accumulation she mentioned was of 15 months.

[13]

Ground 1 19 The central point of the submissions made on behalf of the applicant in support of this ground was that: "… the $15,000 offence was taken into account by the … Judge when assessing the objective seriousness of … (the drug offence)." 20 Specific reference was made to the passage quoted above in which, in determining the objective seriousness of the drug offence, her Honour firstly said that the money laundering offence was "completely separate", but added that it was consistent with the applicant being involved in the ongoing supply of drugs. 21 The submission was then made that these references allowed "a strong inference" to be drawn that the "$15,000 offence" was taken into account in assessing the objective seriousness of the drug offence. It was therefore submitted that the money laundering offence had been taken into account twice, firstly as part of the objective seriousness of the drug offence, and secondly as a matter attracting its own discrete sentence. 22 I would reject these submissions. In assessing the objective gravity of the drug supply offence, Murrell DCJ referred to a number of indicia, of which his possession of $15,000 was one, of actual drug dealing as a business for profit. This was entirely unexceptionable. It was not only the possession of that sum of money; also relevant was the manner in which it was packaged in a "very professional" manner. Her Honour was entirely correct in taking this approach. Possession of $15,000 was not used to enhance the objective gravity of the drug supply offence, but rather to ascertain, correctly and inevitably, that the applicant was engaged in a business enterprise. A final submission was made, that, by comparison with the 6 month sentence imposed in respect of the first money laundering offence, the sentence of 2 years in respect of the second was manifestly excessive. 23 I would not accept this submission. It is not suggested that the sentence of 2 years itself bespoke manifest excess - merely that, when contrasted with the earlier sentence, the difference was not warranted. In my opinion this argument is not tenable. There was nothing excessive about the sentence imposed in respect of the second money laundering offence.

[15]

Ground 3 29 Under this ground it was argued that the starting point of the sentence for the drug supply offence was "disproportionate" to the finding with respect to objective gravity. 30 What her Honour said about that, I repeat, was that the drug supply offence lay "somewhere in the mid range of objective seriousness"; she would have found that it was greater than mid-range, except for the fact that the quantity was right at the bottom of the range for a commercial quantity of cocaine. Her Honour did not say, as is suggested in the ground of appeal as formulated, and repeated in the written submissions, that the offence was "below the middle of the mid range of objective seriousness". 31 Her Honour correctly applied the provisions of Pt 4 Div 1A of the Sentencing Procedure Act, by which a standard non-parole period for the offence of 10 years is prescribed. It is well established that the standard non-parole period applies to sentencing after conviction following a trial. Her Honour's starting point of 9 years, before reduction in recognition of the plea of guilty, was 1 year less than the standard non-parole period. The only reason which appears for such a reduction (leaving aside the reduction for the plea of guilty, which came later) was the finding concerning the level of objective gravity. 32 Given that her Honour found that the offence lay "somewhere in the mid range of objective seriousness", it would have been open to her to begin with the standard non-parole period of 10 years, reduced by reason of the plea of guilty. 33 The submissions went on to raise the question of the principle of proportionality, as stated, inter alia, in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Reference was also made to other cases. However, these cases, including Whyte, all pre-date the introduction of Pt 4 Div 1A. The principle of proportionality remains relevant and applicable, but must be applied in the light of the prescription, by the legislature, of standard non-parole periods. 34 I would reject this ground of appeal. It follows that, although I would grant leave to appeal, I would dismiss the appeal. 35 KIRBY J: I agree with Simpson J. 36 LATHAM J: I agree with Simpson J. **********