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Court of Criminal Appeal 30 March 1999

REGINA v WHITE

[1999] NSWCCA 60

Drugs
CRIMINAL LAW AND PROCEDURE APPEAL ON SENTENCE SUPPLY OF PROHIBITED DRUGS POSSESSION OF PROHIBITED DRUGS HARDSHIP TO APPLICANT'S FAMILY LEAVE TO APPEAL GRANTED

Citation: [1999] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 30 March 1999
Judge(s): Simpson J; Smart AJ

Background

The applicant, a 26-year-old woman, pleaded guilty in the District Court to one charge of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985, with three possession charges taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without recording separate convictions). The offences arose from a single police search on 5 November 1997, during which police found methylamphetamine, cannabis leaf, ephedrine, and amphetamine concealed in her home.

The applicant cooperated immediately with police and pleaded guilty at the earliest opportunity. She had a prior criminal record including a 1995 supply conviction, for which she had received community service, and she had subsequently breached that order. At the time of sentencing she had two young children and was reportedly pregnant with a third.

Twigg DCJ in the District Court sentenced her to two years' imprisonment, divided equally into twelve months minimum and twelve months additional term on the basis of special circumstances. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the two-year term of imprisonment was manifestly excessive in all the circumstances
  • Whether a non-custodial option, such as a Griffiths remand (a lengthy adjournment tied to rehabilitation) or periodic detention, ought to have been imposed instead of full-time custody
  • Whether the sentencing judge gave sufficient weight to hardship caused to the applicant's family, including her young children and relatives with mental illness

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentence imposed by Twigg DCJ was within the available range and not manifestly excessive. Simpson J acknowledged that, given the relatively small drug quantities involved, periodic detention could have been a sentencing option open to the judge. However, her Honour rejected the argument that full-time custody was unavailable or inappropriate in the circumstances.

The Court placed significant weight on the applicant's prior record. Her 1995 supply conviction, the subsequent failure to comply with her community service order, and the bench warrant issued after she failed to appear for breach proceedings all pointed against a sentence primarily oriented toward rehabilitation. Sentencing statistics from the Judicial Commission supported the conclusion that the sentence fell comfortably within the range.

On the question of family hardship, the Court noted that sentencing judges must consider such matters, but found critical deficiencies in the evidence placed before the sentencing court. No oral evidence had been called; much had been put from the Bar table without supporting documentation. There was no evidence about the actual care needs of the applicant's mother or brother (diagnosed with schizophrenia), whether their conditions were managed by medication, or the degree to which the applicant was their primary carer.

The Court also observed that the applicant had been pregnant at the time she committed the offences, a circumstance that provided no reassurance that her third pregnancy would deter further offending. The Probation and Parole Service's pre-sentence report was also clarified: it did not recommend periodic detention but merely stated it could recommend no community-based option other than periodic detention, a distinction the Court treated as material. Such assessments are not binding on sentencing courts in any event.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Direction that the applicant be released on parole at the expiration of the minimum term on 5 August 1999

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a full-time custodial term is not foreclosed simply because drug quantities are relatively small, where the offender has a relevant prior record and a history of failing to comply with non-custodial orders.
  • A sentencing court's ability to consider family hardship depends on the quality of evidence placed before it; unsworn submissions from the Bar table, without supporting documentation or oral testimony, may leave critical factual gaps that a court cannot fill.
  • A Griffiths remand (adjournment to allow rehabilitation) is not an appropriate default response to a drug supply conviction where the offender's history suggests such an approach is unlikely to succeed.
  • Where a pre-sentence report states only that no community-based option other than periodic detention can be recommended, that falls short of a positive recommendation for periodic detention and is not binding on the sentencing judge.
  • Sentencing statistics published by the Judicial Commission can form part of the Court of Criminal Appeal's assessment of whether a sentence is within the available range, reinforcing the utility of those statistics in sentence appeals.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), ss 5(2), 24(1)

Cases:
- Griffiths v R (1977) 137 CLR 293
- R v Edwards (1996) 90 A Crim R 295
- R v Niga, NSW Court of Criminal Appeal, 13 April 1994 (Kirby P)
- R v Bailey (1988) 34 A Crim R 154