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43
Court of Criminal Appeal 14 April 2000

R v SMIROLDO

[2000] NSWCCA 120

Also reported as (2000) 112 A Crim R 47
Drugs

Citation: R v Smiroldo [2000] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 14 April 2000
Judge(s): Sheller JA, Hulme J, Dowd J

Background

The appellant was sentenced in the District Court to a minimum term of two and a half years imprisonment, with an additional term of two years, after pleading guilty to an offence under section 25A of the Drug Misuse and Trafficking Act. That provision targets repeat drug supply, making it an offence to supply a prohibited drug (other than cannabis) on three or more separate occasions within any period of thirty consecutive days, for financial or material reward.

The facts involved four transactions between January and February 1998, in which the appellant sold methylamphetamine to an undercover police officer from the garage area of his home. The first three sales were small "street deal" amounts for $50 each. The fourth was a larger transaction for $900, involving 26.7 grams of the drug. The sentencing judge found the appellant was operating an ongoing retail drug business, open seven days a week, and was prepared to supply larger quantities when requested.

The appellant sought leave to appeal against the sentence imposed by Howie DCJ in the District Court. The Court of Criminal Appeal granted leave but ultimately dismissed the appeal.

  • Whether the sentence imposed under section 25A of the Drug Misuse and Trafficking Act was appropriate given the nature and scale of the appellant's drug supply activities.
  • How section 25A offences should be assessed on the sentencing scale, given the provision's focus on the pattern of conduct rather than the quantity of drugs supplied.
  • What weight, if any, should be given to sentencing statistics for ordinary supply offences when sentencing for a section 25A offence.

Decision

Hulme J (with whom Sheller JA and Dowd J agreed) noted that this appeared to be the first time section 25A had come before the Court of Criminal Appeal. The provision was introduced following a recommendation of the Wood Royal Commission, targeting dealers who limited their exposure by dealing only in small quantities. Crucially, the quantity of drugs supplied is immaterial to the commission of the offence, though it remains relevant to the assessment of its seriousness.

Hulme J confirmed that the maximum penalty under section 25A is reserved for the worst category of cases, consistent with standard sentencing principles. Courts must determine where an individual offence falls on the scale by reference to factors such as the extent of the drug operation, the types and quantities of drugs involved, and the offender's role. His Honour drew on reasoning from R v Kalache to the effect that Parliament had made unmistakably clear the seriousness with which it regards drug trafficking, and that courts had historically imposed penalties insufficient to reflect that concern.

The Court gave limited weight to sentencing statistics for ordinary supply offences, on the basis that the elements of a section 25A offence are meaningfully different from a single supply offence. The statistics were also viewed as suggestive of undue leniency. On the facts, both the sentencing judge and Hulme J agreed that the appellant deserved a sentence longer, and in Hulme J's view significantly longer, than was imposed. However, because the Crown had not sought to increase the sentence, the appeal by the appellant was simply dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 25A of the Drug Misuse and Trafficking Act targets systematic repeat supply within a thirty-day window; the quantity of drugs involved is irrelevant to the elements of the offence, though it bears on the assessment of seriousness.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the maximum penalty under section 25A is reserved for the worst category of cases, and that sentencing for these offences requires an assessment of the scale and nature of the entire dealing operation.
  • Sentencing statistics for ordinary supply offences carry limited weight when sentencing for a section 25A offence, because the conduct captured by the provision is qualitatively different from a single supply transaction.
  • Both the sentencing judge and the Court of Criminal Appeal considered the sentence actually imposed to be lower than was warranted, though the absence of a Crown appeal meant the Court did not intervene to increase it.
  • Under this provision, a defendant who conducts a regular, open-ended drug retail operation across the thirty-day period, even in small quantities, falls within the conduct Parliament sought to target through this provision.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), section 25A (introduced by Act 73 of 1998)

Cases:
- Ibbs v R (1987) 163 CLR 447
- Veen v R (No 2) (1988) 164 CLR 465
- R v Kalache [2000] NSWCCA 2