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Court of Criminal Appeal 8 December 1999

Regina v R Yates

[1999] NSWCCA 403

Drugs
(NO QUESTION OF PRINCIPLE)

Citation: Regina v R Yates [1999] NSWCCA 403
Court: New South Wales Court of Criminal Appeal
Date: 8 December 1999
Judge(s): Sperling J; James J

Background

The applicant was sentenced in the District Court by Woods DCJ on a single count of knowingly taking part in the supply of a prohibited drug at not less than the commercial quantity, an offence carrying a maximum penalty of 20 years imprisonment under the Drug Misuse and Trafficking Act 1985. The offending occurred between May and September 1997. The sentence imposed was a minimum term of two years imprisonment and an additional term of eight months, structured in accordance with the statutory formula under the Sentencing Act 1989.

The applicant did not challenge the sentencing judge's factual findings about the offence or the subjective circumstances. Nor did he contend that the total sentence was excessive.

His complaint was narrower: that the sentencing judge failed to find special circumstances justifying an enlarged additional term (and correspondingly reduced minimum term), or that the minimum term was otherwise excessive having regard to his personal circumstances.

  • Whether the sentencing judge erred by failing to find special circumstances under s 5(2) of the Sentencing Act 1989 and declining to depart from the statutory ratio between minimum and additional terms
  • Whether the minimum term of two years was excessive given the applicant's subjective circumstances

Decision

Sperling J, with whom James J agreed, dismissed the appeal. His Honour confirmed the well-established principle that the minimum term must reflect the seriousness of the offence and cannot be reduced below what is sufficient to reflect the criminality involved. Where the importance of general deterrence is a significant factor, that consideration further constrains any reduction in the minimum term.

Applying those principles, Sperling J considered both the objective criminality of the offence as found by the sentencing judge and the matters advanced by counsel for the applicant. His Honour concluded that a shorter minimum term was not warranted and would not have been substituted even if the matter had been remitted for resentencing.

The Court noted its obligation under s 6(3) of the Criminal Appeal Act 1912 to dismiss a sentence appeal unless satisfied that a lesser sentence is warranted. That threshold was not met in this case.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A minimum term must reflect the seriousness of the offence and cannot be reduced below what is sufficient to account for the offender's criminality, even where favourable subjective circumstances are present.
  • Under s 5(2) of the Sentencing Act 1989, a finding of special circumstances is required before the statutory ratio between minimum and additional terms can be altered in an offender's favour; the existence of subjective considerations does not automatically satisfy that test.
  • General deterrence can independently justify maintaining a minimum term at a level that might otherwise be reduced on subjective grounds.
  • In dismissing the appeal, the Court of Criminal Appeal reiterated that under s 6(3) of the Criminal Appeal Act 1912, an appeal against sentence must be dismissed unless the appellate court is affirmatively satisfied that a lesser sentence is warranted.
  • No question of principle arose in this decision; the outcome turned on the application of settled sentencing law to the specific facts, with the court declining to interfere with the exercise of the sentencing discretion below.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Sentencing Act 1989 (NSW), s 5(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Astill (No 2) (1992) 64 A Crim R 289
- Bugmy (1990) 169 CLR 525
- Church (NSW CCA, 6 November 1998, unreported)
- Cocking [1999] NSWCCA 311
- Isaacs (1997) 90 A Crim R 587
- Kenworthy (NSW CCA, 3 August 1995, unreported)
- Maclay (1990) 19 NSWLR 112
- McDonald (NSW CCA, 12 October 1998, unreported)
- Moffatt (NSW CCA, 21 June 1994, unreported)
- Moffitt (1990) 20 NSWLR 114
- Morrissey (NSW CCA, 15 July 1994, unreported)
- Oastler (NSW CCA, 7 October 1992, unreported)
- Power (1974) 131 CLR 623