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Court of Criminal Appeal 11 June 1999

R v Shepherd

[1999] NSWCCA 162

Drugs
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY SUPPLYING PROHIBITED DRUG (CANNABIS).

Citation: R v Shepherd [1999] NSWCCA 162
Court: New South Wales Court of Criminal Appeal
Date: 11 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant, a young man from Adelaide with no prior criminal record, pleaded guilty to one count of supplying cannabis in the District Court of New South Wales. His role was that of an intermediary: he arranged for a cannabis dealer from Adelaide to meet a Sydney contact, flew to Sydney to facilitate the introduction, and ultimately delivered a box of cannabis to the Sydney contact's home after the original plan went awry. The box was estimated to have a street value of between $25,000 and $30,000. Federal Agents had the Sydney contact's home under surveillance, and both men were arrested.

At sentencing, the applicant presented a strong subjective case. He had reunited with his wife and children, was in full employment, had cooperated with police, and had entered an early guilty plea. Judge Viney accepted that his role was more that of a go-between or carrier than a principal, but nonetheless imposed a minimum term of nine months imprisonment with a 12-month additional term.

The applicant sought leave to appeal against the severity of that sentence. A significant point raised on appeal, which had not been raised before Judge Viney, was that the matter could have been dealt with summarily in the Local Court, where the maximum custodial penalty was two years rather than the ten years applicable in the District Court.

  • Whether the sentence imposed by the District Court was outside the proper exercise of sentencing discretion, having regard to the applicant's subjective circumstances and the nature of his role.
  • Whether the failure to draw the sentencing judge's attention to the possibility of summary disposal in the Local Court constituted an error affecting the validity of the sentence.
  • Whether the fact that a matter could have been dealt with in the Local Court is a relevant consideration in sentencing in the District Court.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Carruthers AJ, with whom Grove J agreed, accepted that the availability of summary disposal in the Local Court was a relevant sentencing consideration, consistent with earlier Court of Criminal Appeal authority. The failure to bring this to Judge Viney's attention was noted as a shortcoming in the proceedings below.

However, Carruthers AJ concluded that the decision by the prosecuting authority to proceed in the District Court had been a proper and responsible exercise of prosecutorial discretion. The offending involved several days of planning and execution, travel from Adelaide to Sydney, and the applicant's own role in identifying the Sydney buyer to the Adelaide dealer.

Even taking into account the Local Court jurisdiction point, the Court was unable to conclude that the sentence, in either its minimum or additional term, fell outside the available sentencing discretion in the circumstances of the case. The Court also invoked the well-established principle, drawn from Le Cerf, that "middle men and underlings" who facilitate drug supply play a genuine role in sustaining drug distribution networks.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the availability of summary disposal in the Local Court is a relevant factor a sentencing court in the District Court should take into account, following Dalton-Morgan and Jason Clyde Smith.
  • A failure to raise the Local Court jurisdiction point before the sentencing judge does not automatically result in the sentence being set aside; the appellate court will assess whether the sentence was nevertheless within the proper exercise of discretion.
  • Where the prosecuting authority's decision to proceed in the District Court reflects a proper and responsible exercise of prosecutorial discretion, that election will not, of itself, render a District Court sentence excessive.
  • Facilitating a drug supply transaction, even in a go-between or carrier role, remains a serious criminal matter. The Court cited Le Cerf for the proposition that intermediaries sustain drug distribution organisations.
  • A strong subjective case, including no prior record, an early guilty plea, cooperation with police, and evidence of rehabilitation, does not necessarily displace the need for full-time custodial sentences in supply cases of this nature.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1995 (NSW), ss 25(1), 32(1)(h)
- Criminal Procedure Act 1986 (NSW), Part 9A (Summary Disposal of Indictable Offences by Local Courts)

Cases:
- Dalton-Morgan, CCA, unreported, 14 December 1989
- Jason Clyde Smith, CCA, unreported, 11 September 1991
- Le Cerf (1975-76) 8 ALR 349