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Court of Criminal Appeal 15 June 2000

Regina v Moore

[2000] NSWCCA 272

Drugs
CRIMINAL LAW DRUG OFFENCES SENTENCING EFFECTIVE LATE PLEA OF GUILTY COMMUNITY SERVICE ORDER DOUBLE JEOPARDY

Citation: Regina v Moore [2000] NSWCCA 272
Court: New South Wales Court of Criminal Appeal
Date: 15 June 2000
Judge(s): Spigelman CJ, Newman J, Greg James J

Background

Police executed a search warrant at a residential premises in Ambarvale and discovered 53.9 grams of methylamphetamine, drug paraphernalia including scales, and two unauthorised firearms. The respondent was present at the time and, in a subsequent record of interview, admitted supplying the drug to a friend on one occasion. A second adult was also present at the premises during the search.

The respondent was charged with supplying a prohibited drug (methylamphetamine in a trafficable quantity) under the Drug Misuse and Trafficking Act 1985. She entered a plea of guilty on 4 August 1999, a date on which her matter was listed for trial, meaning the plea was not entered at the earliest available opportunity.

At sentence, the District Court also took into account two counts of possessing an unauthorised firearm. The sentencing judge imposed a Community Service Attendance Centre Order of 36 hours, which required no physical work given the respondent's severe cardiac condition. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the sentence of a Community Service Attendance Centre Order of 36 hours was manifestly inadequate for a drug supply offence carrying a maximum penalty of 15 years imprisonment.
  • Whether the sentencing judge erred by giving maximum mitigatory weight to a late plea of guilty.
  • Whether the sentencing judge erred by failing to address general and personal deterrence.
  • Whether, even if the sentence was inadequate, the Court should exercise its discretion to dismiss the appeal having regard to the respondent's medical condition and the principle of double jeopardy.

Decision

Newman J (with whom Spigelman CJ and Greg James J agreed) identified several errors in the sentencing judge's approach. The sentencing judge made no reference to either general or personal deterrence, which the Court of Criminal Appeal has consistently held to be a relevant consideration in drug supply matters. This omission was identified as a clear error.

The sentencing judge also gave maximum mitigatory weight to the plea of guilty, despite it not being entered at the earliest opportunity. Newman J held this was an error in principle: a late plea, entered on the day the matter was listed for trial after public resources had been expended in trial preparation, does not warrant the same weight as a plea entered at the first available opportunity. A late plea is also, at least to some degree, inconsistent with full contrition.

Newman J accepted that the sentence was inadequate. However, the Court declined to intervene. The respondent's cardiac condition carried a morbidity rate of approximately 20 percent per year and was severely disabling. Given that serious medical condition, combined with the principle of double jeopardy (which cautions against exposing a respondent to a more severe sentence on a Crown appeal), the Court exercised its discretion to dismiss the appeal rather than resentence.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A late plea of guilty, entered on the day a matter is listed for trial, does not warrant maximum mitigatory weight at sentence. The timing of a plea is relevant both to the utilitarian benefit it provides and as an indicator of the degree of contrition.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown appeal against sentence may be dismissed in the exercise of discretion even where sentencing error is established, where the respondent's personal circumstances and the principle of double jeopardy make resentencing unjust.
  • Deterrence, both general and personal, must be addressed in sentencing for drug supply offences. Failure to do so constitutes error.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), drug weight is calculated by admixture rather than pure weight, which can significantly affect whether a quantity falls within a trafficable threshold.
  • The presence of another adult at premises where drugs are found can create difficulties for the Crown in establishing possession or supply, and a plea of guilty in those circumstances carries some utilitarian value regardless of its timing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Regina v Clark, unreported, Court of Criminal Appeal, 15 March 1990