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Court of Criminal Appeal 26 May 2000

R v Ramos

[2000] NSWCCA 189

Also reported as 112 A Crim R 339
Drugs
CRIMINAL LAW SENTENCING SENTENCING SENTENCE MANIFESTLY LENIENT DISCRETION TO NOT RE SENTENCE

Citation: R v Ramos [2000] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judges: Spigelman CJ, Wood CJ at CL, Foster AJA, Grove J, James J

Background

The respondent pleaded guilty in the Wollongong Local Court to four counts of supplying methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offences occurred across February 1998 and involved sales to an undercover police officer as part of Operation Ghana, a targeted investigation into amphetamine and ecstasy supply. On one occasion, police arrested the respondent in possession of 220 grams of methylamphetamine and 100 tablets, along with a list suggesting he was owed $6,000 by drug customers.

The respondent was 22 years old at the time of sentencing, had a prior drug-related criminal record, and was subject to both a bond and a Community Service Order when the offences were committed. In October 1999, District Court Judge Phelan sentenced him to 24 months imprisonment, structured as a minimum term of six months and an additional term of 18 months.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentence was manifestly inadequate. By the time of the appeal hearing, the respondent had served the minimum term, been released, and returned to employment.

  • Whether the sentence imposed by the District Court was manifestly lenient and disclosed error of law
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its discretion to decline to re-sentence given the respondent's demonstrated post-release rehabilitation

Decision

Wood CJ at CL, with whom all other judges agreed, found the sentence was manifestly lenient and identified multiple errors. Insufficient weight was given to the objective seriousness of the offences, the accumulation of separate supply transactions, and the significant aggravating circumstance that the offending occurred while the respondent was on a bond and serving a Community Service Order.

Further errors included failure to adequately account for the fact that the respondent was a dealer who sold for profit without being a drug user himself, an acknowledged aggravating factor. The sentence was also structured illogically: having already discounted the overall term to reflect favourable subjective circumstances and rehabilitation, the sentencing judge then applied those same factors again to justify a disproportionately short minimum term under a finding of special circumstances. The Probation and Parole Service had itself advised that supervision was unnecessary, which further undermined the logic of an extended parole period.

Despite finding clear error, the Court declined to re-sentence. The respondent had already served his minimum term, been released, secured employment, and provided evidence of continuing post-release progress. The Court identified a public interest in not interfering with a demonstrated process of rehabilitation, particularly in the context of drug-related criminality. The Court noted this was not an endorsement of the original sentence, and added that the respondent should harbour no illusion about the consequences of any future reoffending.

Orders Made

  • Appeal dismissed
  • Conviction and sentence confirmed

Key Takeaways

  • A sentence may be found manifestly lenient and legally erroneous, yet the Court of Criminal Appeal retains a discretion to decline to re-sentence where demonstrated post-release rehabilitation makes intervention inappropriate.
  • Sentencing a drug supplier while they are already subject to a bond and Community Service Order constitutes a significant aggravating circumstance that must receive adequate weight.
  • The principle against "double counting" applies to subjective circumstances: where a reduced overall sentence already reflects rehabilitation, those same factors cannot then justify a further structurally disproportionate minimum term.
  • Selling drugs for profit without being a user is a recognised aggravating factor in NSW sentencing for drug supply offences.
  • In dismissing the appeal, the Court reiterated that sentencing courts do not serve the community or the offender by imposing sentences that are "weakly merciful" or that give undue weight to favourable subjective circumstances at the expense of general deterrence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Dodd (1991) 57 A Crim R 349
- Rushby (1997) 1 NSWLR 594
- Readman (1990) 47 A Crim R 181
- Tran (1999) NSWCCA 109
- Liang, NSWCCA, 2 June 1995 (unreported)
- Myers, NSWCCA, 13 February 1990 (unreported)
- Clarke, NSWCCA, 15 March 1990 (unreported)
- Swann, NSWCCA, 17 July 1992 (unreported)
- Cacciola, NSWCCA, 15 October 1998 (unreported)