COUNSEL: R A Hulme (Crown) S J Odgers SC (Respondent)
SOLICITORS: S E O'Connor (Crown) Watsons (Respondent)
CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - supply of heroin, methylamphetamine and cocaine - manifest inadequacy of sentence due to significant role played by respondent in supply - trial judge incorrectly assessed respondent's level of contrition, and the utiilitarian value of late plea of guilty - discount for asssitance erroneously applied wholly to the non parole period - excessive weight given to subjective circumstances - accumulation of sentence more appropriate than concurrency due to duration, frequency and volume of drug supply - appeal allowed - respondent resentenced.
DECISION: Appeal allowed. Sentences in respect of counts 1 and 3 quashed. Respondent resentenced. See para 56.
JUDGMENT:
- 1 -
IN THE COURT OF CRIMINAL APPEAL
60690/01
WOOD CJ at CL SULLY J DOWD J
Tuesday 5 March 2002
REGINA v GLEN LAWRENCE MACDONNELL
Between 1997 and 1998, police officers conducted a covert investigation into the suspected drug activities of the respondent and his nephew. A large quantity of Heroin, Methylamphetamine and Cocaine was seized. His Honour concluded that the respondent was a substantial dealer, whereas his nephew played a limited role. The respondent initially pleaded not guilty to all charges laid against him, but changed his plea during the trial, pleading guilty to the charges of supply not less than large commercial quantity of heroin, supply not less than a large commercial quantity of methylamphetamine, and supply of cocaine.
The maximum penalty for the respondent’s offences is a fine of 5000 penalty units, life imprisonment or both. On 23 Aug 2001, sentence was passed in the following terms:
1Supply not less than large commercial quantity of heroin: imprisonment for 9 years with a non-parole period of 4 years 6 months.
2Supply not less than a large commercial quantity of methylamphetamine: Imprisonment for 7 years with a non-parole period of 4 years.
3 Supply cocaine: Imprisonment for 2 years. The sentences were ordered to be served concurrently because his honour held that each offence was part of one continuous exercise. The effective overall sentence was 9 years with a non-parole period of 4 years 6 months. This sentence incorporated a discount of 25% for the respondent’s plea of guilty. The crown now appeals the leniency of the sentence.
Held: (Allowing the appeal on all grounds):
Ground 1: The sentence was manifestly inadequate The role of the offender is more important than the quantity of drugs when sentencing drug offenders. This is subject to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v MacDonnell [2002] NSWCCA 34
Case
[2002] NSWCCA 34
Decision Date
CaseChat Overview and Summary
The appeal in R v MacDonnell concerned the sentencing of the respondent, who had been found guilty of drug supply offences, specifically for supplying heroin, methylamphetamine, and cocaine. The trial judge had sentenced the respondent to concurrent terms of imprisonment, with non-parole periods of five and a half years and five years, respectively, for the two offences. After the trial judge was informed of potentially overlooked material, he reduced the non-parole periods to four and a half years and four years, respectively, but did not alter the head sentences. This resulted in an effective overall sentence of nine years imprisonment with a non-parole period of four and a half years. The Crown appealed, arguing that the sentence was manifestly inadequate due to the respondent's significant role in the drug supply and the trial judge's incorrect assessment of the respondent's level of contrition and the utilitarian value of his late plea of guilty. The Crown also argued that the discount for assistance was erroneously applied wholly to the non-parole period and that excessive weight was given to the subjective circumstances of the case. The court held that an accumulation of sentences was more appropriate than concurrency, given the duration, frequency, and volume of drug supply. The appeal was allowed, and the respondent was resentenced.
The primary legal issues the court had to address in this case were whether the sentence imposed by the trial judge was manifestly inadequate, whether the trial judge had correctly assessed the respondent's level of contrition and the utilitarian value of his late plea of guilty, whether the discount for assistance was properly applied, and whether the trial judge had given excessive weight to the subjective circumstances of the case. The court also had to determine whether an accumulation of sentences was more appropriate than concurrency, given the nature and extent of the respondent's involvement in drug supply.
The court found that the sentence imposed by the trial judge was manifestly inadequate due to the respondent's significant role in the drug supply. The court held that the trial judge had incorrectly assessed the respondent's level of contrition and the utilitarian value of his late plea of guilty. The court also found that the discount for assistance had been erroneously applied wholly to the non-parole period and that excessive weight had been given to the subjective circumstances of the case. The court held that an accumulation of sentences was more appropriate than concurrency, given the duration, frequency, and volume of drug supply. As a result, the appeal was allowed, and the respondent was resentenced.
The court ordered that the sentences imposed by the trial judge be set aside and that the respondent be resentenced. The court ordered that the sentences for the two offences be served cumulatively, with a total sentence of 16 years imprisonment, with a non-parole period of 11 years. This sentence reflected the significant role played by the respondent in the drug supply and the need for general and specific deterrence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
After it was drawn to the attention of his Honour that he may have overlooked certain material, provided on a confidential basis, which was of relevance pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, his Honour reduced the respective non-parole periods for the two offences to four and a half years, and four years respectively. The head sentences were not altered. The effective overall sentence, by reason of the fact that the sentences were directed to be served concurrently, was accordingly one of nine years, with a non-parole period of four and a half years. FACTS Between September 1997 and 9 March 1998, police officers attached to Operation Canfield conducted a covert investigation into the suspected drug activities of the respondent and a co-offender, the respondent’s nephew Kieron MacDonnell. During the course of the operation it became apparent that both men were regularly visiting a flat at Croydon Park, which was leased by a seventy four year old woman named Doris Curtis. On 9 March 1998, the respondent was arrested, and police executed a search warrant at the flat. There they located a number of bags containing drugs, which were tested and found to comprise: “HEROIN3164.9 grams, 83% purity, street value $6,156,970.00METHYLAMPHETAMINE9032.2 grams, above average purity, street value $1,432,890.00COCAINE63.8 grams, street value $21,673.00” The large commercial quantity for both heroin and methylamphetamine is 1kg, a quantity which, in each instance, was well exceeded. Moreover, of significance in the present case was the fact that the heroin and methylamphetamine were of considerable purity. Ms Curtis initially denied any knowledge of the drugs, but later provided a number of induced statements outlining her knowledge of the respondent’s activities, which were consistent only with extensive and long standing dealings in drugs on his part. She was granted an immunity, and gave evidence at the committal proceedings against the respondent and his nephew, by which time she was aged 75 years. His Honour found that in order to avoid detection, the respondent and his nephew had procured the use of her flat to store the drugs. It was apparent from the evidence, as found by his Honour, that she was being paid money for the use of her premises, and that she had supplied the respondent with keys to them. Surveillance showed the respondent or his nephew, or both of them, going to the premises from time to time, and collecting drugs, which were then offered for sale on the street. The premises, his Honour found, were “used for storing, breaking up and preparation for the on-supply of the drugs”. Ms Curtis’ statement, a number of listening device transcripts, and a chronology of the police operation, were tendered as part of the Crown case on sentence, together with a number of analyst’s certificates and statements relating to the value of the drugs seized. His Honour found, by reference to this material, that the respondent was “substantially involved in the selling” of heroin and methylamphetamine, and possibly other drugs. The listening device material, his Honour said, was “damning of (the respondent). It clearly shows (him) actively supplying heroin and the methylamphetamine, it shows his involvement with various criminal associates with drugs, and it shows his active pursuit of drug deals”.