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Court of Criminal Appeal 24 June 1999

Regina -v- AMD

[1999] NSWCCA 171

Also reported as 107 A Crim R 518
Drugs

Citation: Regina v AMD [1999] NSWCCA 171
Court: New South Wales Court of Criminal Appeal
Date: 24 June 1999
Judge(s): Ireland J, Abadee J, Barr J

Background

The respondent pleaded guilty in the District Court at Campbelltown to two counts of supplying cannabis leaf under the Drug Misuse and Trafficking Act. The first count involved 446 grams of cannabis supplied to a police informant at an oyster lease in Macksville; the second involved 9,061 grams discovered nearby during a controlled operation involving an undercover officer. The transactions occurred in July 1997 and were recorded using listening devices.

The sentencing judge, Sides DCJ, found that the respondent had made a conscious decision to supply the drugs, was aware of the risks, and could not be said to have been motivated purely by sympathy for the informant's fabricated claim of needing cannabis for cancer pain relief. The respondent had relevant prior convictions for drug offences and had been released on parole only recently before reoffending.

Despite this, Sides DCJ imposed cumulative sentences of six months (count 1) and two years and six months (count 2), both to be served by way of periodic detention rather than full-time custody. The Crown appealed under section 5D of the Criminal Appeal Act 1912, arguing that the sentencing judge's discount for assistance to authorities was excessive.

  • Whether the sentencing judge erred in the manner and extent of the discount applied to the respondent's sentence in recognition of his assistance to authorities
  • Whether exceptional circumstances existed to justify departing from the general principle that full custodial sentences should be imposed for offences of this kind
  • Whether the sentence imposed was within the range appropriate to the circumstances

Decision

Ireland J, with Abadee J and Barr J agreeing, dismissed the appeal. The court acknowledged that the general rule requires full-time custodial sentences for drug supply offences of this scale, and that this principle may only be departed from in exceptional circumstances. However, the court found that such circumstances were present on the facts.

The critical factor was the confidential affidavit evidence (Exhibit "E"), which detailed the nature and scope of the respondent's assistance to authorities. The court accepted that the respondent's information related to a relatively large number of offenders and multiple criminal enterprises, that the quality of the assistance was high, and that its value had been confirmed where confirmation was possible. The sentencing judge had concluded that a discount well in excess of 50 percent was warranted in the circumstances.

The court further accepted that imprisoning the respondent on a full-time basis would significantly impede ongoing investigations and prosecutions across a wide geographical area. That operational consequence, in this case, constituted an exceptional circumstance sufficient to support the imposition of periodic detention rather than full-time imprisonment.

Ireland J added an important qualification: where exceptional circumstances of this kind are present, particularly where confidential material is withheld from the record, the case should not be drawn upon for statistical sentencing guidance in other proceedings. The Court of Criminal Appeal noted that the customary range for assistance discounts in New South Wales generally falls between 20 and 50 percent, citing the decision in R v Chu, though it did not disturb the sentence below.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Exceptional circumstances can justify a departure from the general principle requiring full-time custodial sentences for serious drug supply offences, including where full-time imprisonment would materially impede ongoing criminal investigations.
  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that the quality, breadth, and operational significance of an offender's assistance to authorities are central considerations when assessing the appropriate sentencing discount.
  • The customary range for assistance discounts in New South Wales was confirmed as falling between 20 and 50 percent, though the figure from the Cartwright decision was expressly noted not to constitute a tariff.
  • Where confidential material is placed before a sentencing court and cannot be disclosed on appeal, both the sentencing decision and the appellate review operate under significant constraints, and the case has limited utility for broader sentencing comparisons.
  • Cases decided on the basis of undisclosed material and exceptional circumstances should not be used as a statistical reference point for sentencing in other drug supply matters.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act (NSW), s 25(1)

Cases Cited:
- R v Clarke (NSWCCA, 15 March 1990, unreported)
- R v Leslie (1991) 55 A Crim R 68
- R v Day (NSWCCA, 23 April 1998, unreported)
- R v Ward (NSWCCA, 8 August 1997)
- R v Ortiz (NSWCCA, 3 November 1994)
- R v Hallocoglu (1992) 29 NSWLR 67
- Regina v WHS (NSWCCA, 27 March 1995, unreported)
- Regina v Cacciola (NSWCCA, 15 October 1998, unreported)
- R v Edwards (NSWCCA, 13 November 1996, unreported)
- R v Chu (NSWCCA, 16 October 1998)