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Court of Criminal Appeal 2 August 2000

Regina v D'Amico

[2000] NSWCCA 290

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE.

Citation: Regina v D'Amico [2000] NSWCCA 290
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 2000
Judge(s): Newman JA, Sperling JA

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of a commercial quantity of heroin. Over a sixty-day period she purchased 350 grams of heroin, used a portion herself, paid two runners in heroin, and sold the remainder to retail customers for cash. The District Court sentenced her to six years imprisonment with a minimum term of four years.

The applicant sought leave to appeal against that sentence. Her husband, who had also been convicted of heroin supply offences arising from the same general period, received a sentence roughly half as severe as hers.

  • Whether the sentencing judge erred in treating the applicant's drug habit as a motive for the offending, rather than as a mitigating factor reducing moral culpability
  • Whether inadequate weight was given to the hardship caused to the applicant's young child by her incarceration
  • Whether the sentencing judge made insufficient allowance for special circumstances (the applicant's rehabilitation needs) by not enlarging the additional term at the expense of the minimum term
  • Whether the substantial disparity between the applicant's sentence and her husband's sentence demonstrated a lack of proportionality or parity warranting intervention

Decision

Drug habit as motive. The Court found no error in the sentencing judge's approach. Applying the guideline judgment in R v Henry, the Court confirmed that committing an offence to fund a drug addiction does not, as a general principle, reduce moral culpability compared with other financial motives. The Court acknowledged that the applicant's motive was not as base as pure greed, but that observation alone did not establish any error below.

Hardship to the applicant's child. The Court applied the principle from R v Edwards that family hardship caused by imprisonment is unfortunately common, and only exceptional circumstances can warrant treating it as a mitigating factor. The circumstances here did not rise to that exceptional threshold, and no error was demonstrated.

Special circumstances and rehabilitation. The Court noted that the sentencing judge appeared to have recognised special circumstances and made some allowance for them. The question on appeal was not whether this Court might have reached a different result, but whether the sentencing judge's discretion miscarried. The Court found the approach taken fell within the proper ambit of the judge's discretion.

Parity with the husband's sentence. Although the husband's sentence was approximately half as severe, the Court identified three substantial differences justifying the disparity: the applicant's charge involved not less than a commercial quantity of heroin whereas her husband's did not; the husband received a discount for assistance to the authorities, which alone could account for most or all of the difference; and the husband faced the recognised additional hardship of serving his sentence in protective custody following an assault. The Court rejected any suggestion that the applicant had a legitimate grievance about being treated more harshly.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed, following R v Henry, that a drug addiction which motivates offending does not automatically reduce the offender's level of moral culpability, and that committing crimes to fund a habit is not ordinarily a mitigating factor in sentencing.
  • A causal link between a drug habit and the commission of an offence may be relevant in specific ways identified in Henry, but those considerations did not apply on the facts of this case.
  • Under the principle in R v Edwards, family hardship resulting from imprisonment warrants mitigation only in cases of truly exceptional circumstances; ordinary separation and emotional distress do not meet that threshold.
  • An appellate court reviewing a sentence for special circumstances does not substitute its own view for that of the sentencing judge; the question is whether the judge's discretion miscarried, not whether a different outcome was open.
  • Apparent sentencing disparity between co-offenders does not establish a parity error where there are adequate explanations, including differences in charges, assistance to authorities, and personal circumstances such as the need for protective custody.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on drug supply sentencing)
- R v Raz (Unreported, NSWCCA, 17 December 1992) (role of offender in drug supply)
- R v Edwards (Unreported, NSWCCA, 17 December 1996) (exceptional hardship and family circumstances)

Legislation: No specific legislation was cited by name in the judgment text, though the maximum penalty of 20 years imprisonment and 3,500 penalty points was noted for the offence of knowingly taking part in the supply of a commercial quantity of heroin.