AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 June 1999

Regina -v- A.M.D.

[1999] NSWCCA 193

Drugs
CROWN APPEAL

Citation: Regina v A.M.D. [1999] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
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, contrary to section 25(1) of the Drug Misuse and Trafficking Act. The first count involved 446 grams and the second 9,061 grams. The offending arose from controlled police operations in July 1997, in which an informant and an undercover officer were involved.

The respondent had a prior criminal history that included earlier convictions for cannabis cultivation and supply, for which he had served a custodial sentence. He was released on parole in 1995, and the current offences were committed shortly after his recognizance expired.

The sentencing judge, Sides DCJ, imposed a total of three years periodic detention rather than full-time custody. The judge found that exceptional circumstances existed because of the respondent's extensive, accurate, reliable, and ongoing assistance to authorities. The Crown appealed, arguing the discount given was excessive and the departure from full custodial sentence was not justified.

  • Whether the sentencing judge erred in departing from the well-established principle that drug supply offences of this kind ordinarily require a full custodial sentence
  • Whether the nature and quality of the respondent's assistance to authorities constituted "exceptional circumstances" sufficient to warrant the imposition of periodic detention instead of full-time imprisonment
  • Whether the discount applied by the sentencing judge was within an appropriate range

Decision

The Court of Criminal Appeal dismissed the Crown's appeal, finding no proper basis to interfere with the sentence imposed by Sides DCJ. Ireland J, with whom Abadee J and Barr J agreed, acknowledged that the usual course in cases of this nature is to impose a full custodial sentence, and that departing from that course requires exceptional circumstances.

The court accepted that the respondent's assistance to authorities, as detailed in a confidential affidavit (Exhibit "E"), was accurate, reliable, and ongoing. Critically, the assistance extended across a relatively wide area and related to a number of separate criminal enterprises involving a large number of offenders. The court found it was reasonable to conclude that full-time incarceration would significantly impede the investigation and prosecution of those offenders, and that this impediment, combined with the benefit to the community from the respondent's continued assistance, constituted exceptional circumstances.

Ireland J emphasised that the case fell into a category where statistical or comparative analysis of sentence levels was of no assistance. The confidential nature of the evidence meant that not all material could be placed before the court, and the court noted this limitation expressly. The Crown's decision to bring the appeal was described as entirely appropriate in its watchdog role, even though the appeal ultimately failed.

On the question of the discount applied, the court noted that in R v Chu, Spigelman CJ had confirmed that the fifty percent discount recognised in earlier authority was not a fixed tariff, and that discounts in New South Wales commonly fall between twenty and fifty percent, with few exceptions. The court did not find the discount applied here to be outside a permissible range given the particular circumstances.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Exceptional circumstances can justify departing from the ordinary requirement for a full custodial sentence in serious drug supply cases, but the threshold is high and must be clearly established on the evidence.
  • Where a respondent's assistance to authorities is accurate, reliable, ongoing, and extends across multiple criminal enterprises, the community benefit of that assistance and the impediment that full-time custody would create may together constitute the necessary exceptional circumstances.
  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that each case involving exceptional circumstances must be assessed on its own facts, and that sentencing outcomes in such cases should not be used as statistical benchmarks for other matters, particularly where confidential evidence is involved.
  • The Court of Criminal Appeal reaffirmed that a sentencing discount for assistance to authorities in New South Wales generally falls within a range of twenty to fifty percent, and that the figure recognised in earlier authority is not a fixed tariff.
  • No impropriety attaches to the Crown bringing an appeal in cases of this kind, even where full disclosure of the underlying evidence is impossible, given the Crown's role in ensuring sentences are subject to appropriate scrutiny.

Legislation and Cases Referenced

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

Cases:
- 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, unreported)