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48
Court of Criminal Appeal 15 September 1999

R v Crombie

[1999] NSWCCA 297

Drugs
CRIMINAL LAW SENTENCING WHETHER MANIFESTLY ESCESSIVE

Citation: Crombie v R [1999] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Wood CJ at CL; Simpson J

Background

The applicant was arrested following a police undercover operation in Nimbin, during which an operative purchased heroin from him on three separate occasions in September 1998. The applicant openly described himself as a daily presence at a known drug supply location, and at the time of his arrest was found in possession of further packets of white powder. He admitted to selling heroin when he needed money, describing himself as an addict dealer rather than a large-scale supplier.

The Crown Prosecutor elected to proceed in the District Court on a single charge of supply under s 25(1) of the Drug Misuse and Trafficking Act, rather than pursuing the more serious ongoing supply charge under s 25A or prosecuting the matter summarily in the Local Court. The other two instances of supply were placed on a Form 1 (a document that allows a court to take related offences into account at sentencing without recording separate convictions). The applicant pleaded guilty and was sentenced to a minimum term of two years' penal servitude and an additional term of one and a half years.

The applicant appealed on the ground that the sentence was manifestly excessive, pointing in particular to the fact that the matter could have been dealt with summarily in the Local Court, where the maximum penalty would have been two years' imprisonment.

  • Whether the sentence imposed was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave sufficient weight to the fact that the offence was suitable for summary prosecution in the Local Court, and that the Crown had itself recognised this suitability.

Decision

The Court of Criminal Appeal confirmed that an election to prosecute in a higher court, when summary prosecution would have been available, is a relevant consideration at sentencing. Prior decisions of the Court had established that this circumstance may call for some mitigation of the sentence otherwise available in the District Court, though those cases did not require the sentencing judge to treat the Local Court maximum as a ceiling.

The sentencing judge had not entirely overlooked this consideration, noting it during the sentencing remarks. His Honour also correctly identified that commercial supply to strangers represented more serious criminality than supply between acquaintances, and that active street dealing in a hard drug like heroin warranted a meaningful custodial response.

Nonetheless, the Court of Criminal Appeal found that, when the availability of summary prosecution was weighed alongside the applicant's personal circumstances, including his age of 39, his first experience of a custodial sentence, and some evidence of steps toward rehabilitation, the original sentence was manifestly excessive. The relevant circumstance had not been given sufficient weight in the overall sentencing exercise.

The Court reduced the minimum term from two years to one and a half years, and the additional term from one and a half years to one year.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • In lieu of the sentence imposed, the applicant was sentenced (taking into account matters on the Form 1) to a minimum term of penal servitude for one and a half years, commencing 15 September 1998 and expiring 15 March 2000.
  • An additional term of one year, commencing 15 March 2000 and expiring 14 March 2001.
  • An order that the applicant be released on parole at the expiry of the minimum term.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the availability of summary prosecution is a relevant sentencing consideration where the prosecuting authority has elected to proceed on indictment in the District Court instead.
  • Prior authority does not require a sentencing judge to treat the Local Court maximum as the effective ceiling; rather, the circumstance is one factor that may call for some mitigation of the sentence that would otherwise be appropriate for an indictable prosecution.
  • Where a sentencing judge acknowledges the submission but fails to give it sufficient weight in light of all the circumstances, that may ground a successful appeal on the basis of manifest excess.
  • Personal circumstances, including age, a first custodial sentence, and prospects of rehabilitation, remain relevant factors that interact with the prosecutorial election consideration when a court assesses the overall sentence.
  • Active street dealing in heroin by a self-described regular dealer was treated as a genuinely serious form of supply, notwithstanding the relatively small quantities involved in the individual transactions.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 25A, 30(1)
- Criminal Procedure Act 1986 (NSW), s 33A

Cases:
- Dalton-Morgan, Court of Criminal Appeal, 14 December 1989
- Jason Clyde Smith, Court of Criminal Appeal, 11 September 1991
- Shepherd (1991) NSWCCA 162
- Le Cerf (1975) 8 ALR 349 (Wells J, cited by analogy on the role of street dealers in perpetuating the drug trade)