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Court of Criminal Appeal 26 May 1999

R v MA

[1999] NSWCCA 257

Drugs
SENTENCING SUPPLY PROHIBITED DRUG, NAMELY HEROIN WHETHER SENTENCE EXCESSIVE

Citation: R v MA [1999] NSWCCA 257
Court: New South Wales Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Barr J; McInerney AJ

Background

The appellant was found by police in a Cabramatta carpark in March 1997 carrying a small amount of heroin on his person. A search of his vehicle revealed approximately 29.8 grams of heroin concealed in a cavity beneath the car radio, along with electronic scales. The appellant admitted the heroin was his and pleaded guilty to supply of a prohibited drug under the Drug Misuse and Trafficking Act.

The District Court sentenced the appellant to a total of four and a half years imprisonment, comprising a minimum term of three and a half years and an additional term of one year. The appellant had a prior conviction for heroin supply involving heroin valued at approximately $110,000, for which he had served a lengthy sentence. The current offence was committed less than one month before the expiry of the additional term of that earlier sentence.

The appellant sought leave to appeal against the severity of the sentence, arguing it was outside the range of the sentencing judge's discretion.

  • Whether the sentence of four and a half years for supplying approximately 29.8 grams of heroin was excessive in all the circumstances
  • Whether the sentencing judge failed to give proper credit for the appellant's plea of guilty
  • Whether the sentencing judge erred by failing to address the question of special circumstances, including the appellant's need for rehabilitation support

Decision

The Court found the sentence was beyond the range of the sentencing judge's discretion. Statistical evidence presented at the hearing indicated that only three per cent of offenders convicted of the same offence received a sentence exceeding that imposed by the District Court. The Crown itself conceded the sentence sat at the higher end of the range, though it maintained it remained within the permissible discretion given the requirements of general and specific deterrence.

The Court identified two significant omissions in the District Court's sentencing remarks. First, the judgment contained no reference to the appellant's plea of guilty, entered at the first available opportunity. The Court emphasised that significant reference to a guilty plea is expected in any sentencing process, given its reflection of contrition and the saving of the cost of a criminal trial. Second, the sentencing judge made no reference to special circumstances, which, in the absence of express consideration, the Court of Criminal Appeal treated as having not been considered at all.

The Court also noted the sentencing judge's inadequate engagement with the appellant's expressions of remorse and his steps towards addressing his heroin addiction, including attendance at a health promotion workshop and engagement with drug counselling while in custody. These were matters the sentencing judge was required to weigh and reflect in the sentence.

Taking all factors into account, including the need to encourage rehabilitation from drug addiction, the Court allowed the appeal and substituted a reduced sentence.

Orders Made

  • Extension of time granted to bring the application for leave to appeal
  • Leave to appeal granted and appeal allowed
  • Original sentence quashed
  • New sentence of four years imprisonment imposed, comprising a minimum term of two years and six months commencing 15 March 1997 and expiring 14 September 1999, and an additional term of one year and six months
  • Appellant eligible for release on parole on 14 September 1999

Key Takeaways

  • A sentencing judge's failure to reference a guilty plea in sentencing remarks is a significant error, given that a plea of guilty ordinarily attracts credit for contrition and the avoidance of trial costs.
  • Where a sentencing judge makes no reference to special circumstances, the Court of Criminal Appeal will proceed on the basis that the issue was not considered, which may of itself constitute error.
  • Statistical sentencing data can support a finding that a sentence is excessive, particularly where only a very small proportion of offenders receive sentences at or above the level imposed.
  • Rehabilitation prospects, including participation in drug counselling and expressed remorse, are matters the sentencing court is required to weigh and reflect in its reasons, even where it retains some doubt about their sincerity.
  • In allowing the appeal, the Court of Criminal Appeal reduced the minimum term from three and a half years to two and a half years, with the additional term extended to one and a half years, in part to allow adequate time for drug counselling support on release.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25 (supply of prohibited drugs; maximum penalty 15 years imprisonment or a fine of 2,000 penalty units)

Cases cited: None specifically referenced in the judgment text.