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Court of Criminal Appeal 20 October 1999

Regina v Campbell

[1999] NSWCCA 332

Drugs
CRIMINAL LAW PRACTICE AND PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Regina v Campbell [1999] NSWCCA 332
Court: New South Wales Court of Criminal Appeal
Date: 20 October 1999
Judge(s): Mason P, James J, Kirby J

Background

The applicant was a 39-year-old house painter who pleaded guilty to taking part in the manufacture of a commercial quantity of methylamphetamine, contrary to section 24(2) of the Drug Misuse and Trafficking Act 1985. He had been recruited by an associate to purchase large quantities of Sudafed tablets, an over-the-counter medication whose active ingredient can be used to produce methylamphetamine. In total, he procured 13,740 tablets and assisted in removing them from their packaging.

The applicant was sentenced in the District Court by Woods DCJ to two years imprisonment, comprising a minimum term of 18 months and an additional term of six months. He subsequently sought leave to appeal against that sentence, also seeking an extension of time to file the appeal, explaining the delay by reference to difficulty accessing legal assistance while in custody.

  • Whether the sentence of two years imprisonment was manifestly excessive in all the circumstances
  • Whether the sentencing judge erred by taking into account an irrelevant consideration (a comment about distress caused to sinus sufferers unable to access Sudafed)
  • Whether the sentencing judge failed to consider whether special circumstances existed under section 5(2) of the Sentencing Act 1989, which might have justified a different minimum-to-additional term ratio
  • Whether the applicant was left with a justifiable sense of grievance arising from a co-offender's sentence being treated more leniently in a related appeal decided the same day

Decision

The Court of Criminal Appeal found the sentence was not manifestly excessive. Kirby J described it as lenient rather than excessive, noting the offence carried a statutory maximum of 20 years imprisonment and a fine, and that the charge involved a commercial quantity of drugs. The applicant's criminal history, spanning his adult life, weighed against him, notwithstanding his early guilty plea and efforts to abstain from drug use.

On the second ground, the Court accepted that the sentencing judge's comment about causing inconvenience to legitimate Sudafed users was irrelevant to the sentencing discretion. However, Kirby J characterised it as an aside that did not infect the overall exercise of discretion, and declined to find it constituted error warranting intervention given the sentence was well within range.

Regarding special circumstances, the Court acknowledged it is plainly desirable for a sentencing judge to specifically address the question. Kirby J nonetheless concluded that no error was established because the judge's remarks about the applicant's drug rehabilitation indicated an awareness of rehabilitation needs, and the length of the sentence itself constrained the practical scope for a different ratio.

The parity argument based on a co-offender's outcome was rejected. The co-offender had no relevant criminal history, and the factual circumstances of each case differed in material respects, including the applicant's drug debt to the principal offender. The Court found those distinctions adequately explained the difference in sentences.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • A sentencing judge's irrelevant aside will not necessarily vitiate a sentence where the overall discretion was validly exercised and the sentence fell within an appropriate range.
  • In dismissing the parity ground, the Court emphasised that differences in criminal history and individual culpability between co-offenders can justify materially different sentences.
  • Under section 5(2) of the Sentencing Act 1989, a failure to expressly address special circumstances will not constitute error where the sentencing remarks, read as a whole, indicate the judge was conscious of rehabilitation needs.
  • A commercial quantity drug offence carrying a 20-year statutory maximum creates significant headroom: a two-year sentence on a plea of guilty, even with moderating factors, was characterised here as lenient rather than excessive.
  • No error was established merely because a Crown appeal against a co-offender's sentence was dismissed on the same day; the applicable comparison requires attention to the specific facts and background of each individual.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), section 24(2)
- Sentencing Act 1989 (NSW), section 5(2)

Cases:
- Regina v Arikan (unreported, NSWCCA, 20 October 1999) (referenced in the judgment but not formally cited)