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6
Court of Criminal Appeal 9 June 2000

REGINA v COLIN

[2000] NSWCCA 236

Drugs
SENTENCE APPEAL BY CROWN SUPPLY COCAINE LOW LEVEL OFFENDER EFFECT OF DELAY APPEAL ALLOWED PERIODIC DETENTION IMPOSED

Citation: Regina v Colin [2000] NSWCCA 236
Court: New South Wales Court of Criminal Appeal
Date: 9 June 2000
Judge(s): Spigelman CJ, Newman J, Adams J

Background

The respondent, a restaurant worker employed as a sommelier and waiter, pleaded guilty to supplying cocaine over a period in early 1995. His involvement arose from a relationship of financial and drug dependency on a co-worker and patron, Mr Zajak, who ran a street-level cocaine dealing operation from the restaurant. The respondent's role was limited to distributing cocaine to Zajak's customers on occasions when Zajak was absent, retaining a small sum per gram for himself.

Due to circumstances unrelated to the respondent, he was not dealt with in the District Court until January 2000, nearly five years after his arrest in March 1995. He had co-operated with police from the outset, never denied the offence, and pleaded guilty at the earliest opportunity.

The District Court sentenced the respondent to a fine of $4,000 and deferred passing sentence on condition he enter into a recognisance to be of good behaviour for two years. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the District Court erred in failing to impose a custodial sentence for a cocaine supply offence, even where the offender was a low-level participant with strong subjective features
  • What weight should be given to general deterrence in sentencing for supply of a prohibited drug at the lower end of the offending scale
  • How significant delay between offending and sentencing affects the appropriateness of a Crown sentence appeal and the sentence imposed
  • What form of custodial order was appropriate given the respondent's rehabilitation and the passage of five years

Decision

The Court of Criminal Appeal allowed the Crown's appeal, finding that the District Court had erred by failing to give sufficient weight to general deterrence. Adams J, delivering the principal judgment, accepted that the respondent's role was near the lowest level of involvement in cocaine supply. However, his Honour reasoned that even minor participants in the drug trade contribute to a criminal network with serious social consequences, including corruption, violence, and the undermining of legitimate enterprise.

The Court acknowledged that the respondent had undergone substantial and genuine rehabilitation since 1995. He had ceased using cocaine, maintained continuous employment, changed his social circumstances, and surrendered his passport for the duration of proceedings. The Court recognised that these factors weighed heavily in mitigation, but did not displace the need for some form of custodial sentence.

Significant attention was given to the five-year delay in proceedings. Drawing on the High Court's observations in Regina v Everett (1994) 181 CLR 295, the Court noted that delay is a factor that must moderate the sentence imposed on appeal. The respondent had been living in the community, apparently rehabilitated, for the entirety of that period, and the Court treated this as a meaningful constraint on the severity of the sentence it was prepared to impose.

Balancing these considerations, the Court quashed the orders below and substituted a sentence of twelve months' imprisonment to be served by way of periodic detention, commencing 16 June 2000. No non-parole period was imposed, consistent with the nature of a periodic detention order under the applicable legislation.

Orders Made

  • Orders of the District Court quashed
  • Respondent sentenced to twelve months' imprisonment, to be served by way of periodic detention
  • No non-parole period imposed, having regard to the nature of the sentence
  • Periodic detention to commence Friday 16 June 2000, with the respondent required to report by 5:00 pm to the Periodic Detention Unit at Parramatta Correctional Centre

Key Takeaways

  • General deterrence remains a significant sentencing consideration for cocaine supply offences even where the offender's role is at or near the lowest level of involvement in the drug trade.
  • Substantial rehabilitation, a guilty plea entered at the earliest opportunity, and genuine co-operation with police are powerful mitigating factors, but they do not automatically displace the need for a custodial sentence in drug supply cases.
  • Prolonged unexplained delay between offending and sentencing, particularly where the offender has been living productively in the community throughout that period, operates to moderate the sentence a court will impose, including on a Crown appeal.
  • Applying the principle from Regina v Everett (1994) 181 CLR 295, the Court of Criminal Appeal confirmed that Crown appeals against sentence must be approached with caution where an offender has already been released and has demonstrably set out on a path of rehabilitation.
  • Periodic detention was available as a sentencing option to give effect to the requirement for custody while still acknowledging the respondent's rehabilitation and the exceptional circumstances created by the delay.

Legislation and Cases Referenced

Legislation:
- Crimes Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Everett (1993) 181 CLR 295 (High Court of Australia)