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Court of Criminal Appeal 12 July 2000

R v Fiorenza

[2000] NSWCCA 264

Drugs

Citation: R v Fiorenza [2000] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 12 July 2000
Judge(s): James J; Bell J

Background

The applicant, a 22-year-old man with no prior criminal history, pleaded guilty in the District Court to multiple charges of supplying amphetamine between January and March 1999. The charges arose from drugs found at his girlfriend's premises and from bags of amphetamine he produced to police when stopped in his vehicle. The sentencing judge also took into account several possession offences.

Judge Howie sentenced the applicant to a total of two and a half years imprisonment on each of the three principal supply charges, with a minimum term of twelve months and an additional term of eighteen months, all sentences running concurrently from the date of sentencing. The sentences reflected a finding that the applicant had been a street-level dealer supplying both amphetamine and ecstasy partly for personal profit over a period of two to three months.

The applicant sought leave to appeal, arguing that his favourable subjective circumstances, taken together, were sufficient to constitute the "exceptional circumstances" required under established sentencing principles to justify a non-custodial sentence, or alternatively that the sentences imposed were manifestly excessive.

  • Whether the applicant's favourable subjective features, considered in aggregate, amounted to "exceptional circumstances" warranting a departure from the general rule that drug traffickers receive full-time custodial sentences.
  • Whether, if full-time custody was appropriate, the sentences imposed by the sentencing judge were manifestly excessive.
  • Whether the Court of Criminal Appeal had grounds to intervene with the sentencing discretion exercised at first instance.

Decision

The Court confirmed the sentencing principle, drawn from R v Clarke and R v Cacciola, that full-time custodial sentences are required in drug trafficking cases except in truly exceptional circumstances. Critically, the Court affirmed that a distinction must be drawn between a case presenting strong subjective features and one presenting genuinely exceptional circumstances. Strong subjective features, even when considered collectively, do not automatically cross that threshold.

James J acknowledged that the applicant's subjective case was genuinely impressive. It included completed drug rehabilitation, consistent negative urine tests, voluntary attendance at Narcotics Anonymous, completion of a trade apprenticeship, full-time employment, no prior criminal history, a guilty plea at the first opportunity, assistance to police, and strong testimonials from employers and family. Despite all of this, the Court found that the sentencing judge had not erred in concluding these features did not rise to the level of exceptional circumstances.

The Court of Criminal Appeal reiterated that it is a court of error only. It may intervene only where a sentencing judge has made an error of principle or exceeded the proper limits of the sentencing discretion. James J found it was not possible to say that the sentencing judge was required, as a matter of law, to find exceptional circumstances on these facts, nor that the sentences imposed were outside the proper range. The fact that other District Court judges may not have consistently applied the principles in Clarke and Cacciola provided no assistance to the applicant.

Bell J agreed with James J's reasons without separate elaboration.

Orders Made

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

Key Takeaways

  • A long-standing principle confirmed by this decision holds that drug trafficking cases require full-time custodial sentences unless truly exceptional circumstances exist, a bar deliberately set higher than a "strong subjective case."
  • Favourable subjective features, including rehabilitation, remorse, no prior convictions, a guilty plea, and assistance to police, may be weighty in combination but will not automatically constitute exceptional circumstances sufficient to displace the general sentencing rule.
  • The Court of Criminal Appeal confirmed its role as a court of error only: it will not substitute its own view of the appropriate sentence merely because another outcome was open, unless the sentencing judge erred in principle or exceeded the proper limits of discretion.
  • In dismissing the appeal, the Court found no error in the sentencing judge's reasoning, even though the applicant's subjective circumstances were described as genuinely unusual and impressive.
  • The existence of other sentences that may have departed from the principles in Clarke and Cacciola did not assist the applicant, as inconsistency elsewhere cannot operate to lower the applicable standard in a given case.

Legislation and Cases Referenced

Legislation
- Sentencing Act (NSW), s 5(2) (special circumstances allowing adjustment of the ratio between minimum and additional terms)

Cases
- R v Clarke (unreported, NSW Court of Criminal Appeal, 15 March 1990)
- R v Cacciola (1998) 104A Crim R 178