Naberezhnov v R [2021] NSWCCA 142
Naberezhnov v R [2021] NSWCCA 142 · Read the judgment on AustLII
Catchwords: Sentencing – objective seriousness – drugs and music festivals
You might think drugs and music festivals seem to go hand-in-glove; a fact which was as true at Woodstock as it is today. In this decision, however, the CCA has used the occasion to observe that just because it might be notorious that drugs are consumed and distributed at music festivals, that general fact is not relevant to the objective seriousness of the particular offence. It might be relevant to general deterrence, but whatever the case, if a judicial officer is going to comment about the state of things outside the facts of what the offender actually did, it is vital they identify how (if at all) that is relevant to the case at hand.
The applicant was sentenced (along with some co-offenders) for drug supply offences: ongoing supply of cocaine (three instances, totalling about 194g), one count of offering to supply over 2kg of MDMA, and one count of actually supplying about 95.5g of MDMA. Other than the last offence, the offences involved an undercover operative. But it was the last offence which is more important to the appeal (and this summary): the offender went to a dance festival, and was found with MDMA, separated into about 500 capsules. This summary only deals with that offence, and the error which attended it.
On sentence, the Crown had submitted that at the festival where the offender had intended to sell his wares, two people died and 13 other people were variously treated for serious drug-related issues. Those submissions appeared in the Crown’s written submissions under the heading “Objective Seriousness”, although they were expressed to be in reference to general deterrence. At first instance, counsel for the applicant observed (and the judge confirmed) that nobody had ever asserted that it was the offender’s drugs that caused the deaths. That notwithstanding, in the sentencing judgment the judge commented that he had taken judicial notice of the fact that drugs are on occasions supplied at festivals, that it is well known in the community that people have died as a result of these substances, and that many of the people who commit this kind of offence at festivals are young.
Bearing in mind that there were also other, more serious offences to be dealt with, the judge imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The applicant appealed on the basis, inter alia, that the sentencing judge had impermissibly taken into account the observations about drugs at music festivals generally in assessing the objective seriousness of the festival offence.
In the judgment of Bellew J (with whom Adamson J agreed, offering some additional remarks; Harrison J agreeing with both) it was somewhat infelicitous of the Crown to submit on the subject of deaths at music festivals under the heading “Objective Seriousness”, but it was not necessary to determine whether that reference led the judge into error (at [48]). The objective seriousness of an offence must be assessed wholly by reference to the nature of a person’s offending. In the context of the present offence, the fact that people may have died at music festivals, the fact that supply and consumption of drugs happens regularly at music festivals, and the fact (if it be that) that offending of this kind is often committed by people in a particular demographic, although relevant to general deterrence, were not factors relevant to the applicant’s offending. By taking them into account in assessing objective seriousness, the sentencing judge erred (at [49]).
Adamson J (with whom Harrison J agreed) appeared less certain whether the sentencing judge had actually taken the impugned matters into account (see [4]). The setting in which the offending took place was relevant to the objective seriousness of the offending, and so it was, at least potentially, relevant that the offending occurred in the context of a music festival. The potential consequences of an offence in general can be assumed to have been taken into account by the legislature in prescribing the maximum penalty. So, in the context of drug supply, the potential consequences included that one or more people might die or suffer catastrophic health consequences. But the potential consequences of particular offending by reference to what has happened in unrelated cases does not increase the objective seriousness of the particular offending (at [3]). Judges are entitled to make observations on topics of community concern and topical interest in remarks on sentence. But if they do so, they are obliged to make clear whether those matters bear on the sentence imposed on the offender. Because the sentencing judge’s reasons were insufficiently clear as to the matters his Honour had taken into account in assessing objective seriousness, and because there was a risk that his Honour had done so, her Honour considered the ground made out (at [4]-[5]).
This was, however, a pyrrhic victory: despite the error the Court declined to impose a lesser sentence.