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6
Court of Criminal Appeal 17 August 2000

R v Thomson

[2000] NSWCCA 294

Drugs

Citation: R v Thomson [2000] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 17 August 2000
Judge(s): Spigelman CJ, Wood CJ at CL, Foster AJA, Grove J, James J

Background

The respondent pleaded guilty to one count of knowingly taking part in the manufacture of amphetamine, an offence under s 24(1) of the Drug Misuse and Trafficking Act. The offence arose from a 1995 operation in which the respondent initiated contact with a person he believed could assist in manufacturing amphetamine. That person was, unknown to the respondent, a registered police informant who reported the contact to authorities, including the National Crime Authority.

Over several weeks, the respondent set up a fictitious business, leased rural land at Kurrajong, acquired laboratory equipment, and paid $11,000 for chemicals to be used in the manufacturing process. Police executed a search warrant on 28 June 1995 and found the respondent in protective clothing, supervising manufacturing operations that had produced an intermediate chemical in the amphetamine production process.

The respondent was originally charged with the more serious offence under s 24(2) (manufacture of not less than a commercial quantity). After a lengthy delay and a voir dire concerning the admissibility of evidence, the Crown proceeded on the lesser charge under s 24(1). Judge Tupman sentenced the respondent to two years' imprisonment by way of periodic detention. The Director of Public Prosecutions appealed against the adequacy of that sentence.

  • Whether Judge Tupman made errors of principle in the sentencing process, including in her treatment of the entrapment-like conduct by authorities, the basis for assessing the quantity of drug involved, and the applicable provisions of the Periodic Detention of Prisoners Act
  • Whether, even if errors were established, the Court of Criminal Appeal should exercise its discretion to intervene and re-sentence the respondent on a Crown appeal against sentence

Decision

James J (with whom all other judges agreed) found that the sentencing judge did make some errors of principle. These included errors in how the facilitation of the offence by authorities was treated in the sentencing exercise, the basis on which the quantity of amphetamine was assessed, and a failure to sentence in accordance with amendments to the Periodic Detention of Prisoners Act that were in force at the time of sentencing.

Despite those errors, the Court emphasised that on a Crown appeal against sentence, the existence of error does not automatically require intervention. The Court retains a discretion, informed by the principle that any sentence it imposes on re-sentencing will ordinarily be less than what should have been imposed at first instance, or the minimum that could properly have been imposed. Events occurring after the original sentence are also taken into account.

Weighing all relevant circumstances, James J concluded that intervention was not warranted. Those circumstances included: the offence fell under the less serious s 24(1) rather than s 24(2); the respondent received a discount for his guilty plea; the criminal enterprise was extended by the involvement and facilitation of the authorities; the respondent spent approximately six months in full-time custody after arrest; he committed no further offences after being released on bail in December 1995; he had meaningfully rehabilitated, devoting himself to his family and employment; and he had by then served approximately seven months of periodic detention.

Orders Made

  • Crown appeal against sentence dismissed

Key Takeaways

  • Even where a sentencing judge has made errors of principle, the Court of Criminal Appeal retains a discretion on a Crown appeal to decline to intervene and re-sentence the offender.
  • In exercising that discretion, the Court takes into account that any sentence it imposes on re-sentencing will typically be lower than what should have been imposed at first instance, reflecting what has been called the "double jeopardy" consideration in Crown appeals.
  • Post-sentence rehabilitation and conduct, the absence of further offending, and time already served in custody are all relevant factors the appellate court weighs when deciding whether to exercise that discretion.
  • Where authorities actively facilitated or extended the criminal conduct of an offender, that involvement is a relevant consideration in sentencing, capable of moderating the sentence that would otherwise be appropriate.
  • Proceeding on a lesser charge under s 24(1) of the Drug Misuse and Trafficking Act, rather than the commercial quantity offence under s 24(2), materially affects the sentencing range and framework applied by the court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 24(1) and 24(2)
- Evidence Act 1995 (NSW), s 138
- Periodic Detention of Prisoners Act (NSW)
- Periodic Detention of Prisoners Amendment Act 1998 (NSW), No 43 of 1998

Cases:
- R v Allpass (1994) 72 A Crim R 561