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Court of Criminal Appeal 25 August 2000

Regina v Scott

[2000] NSWCCA 313

Drugs
CRIMINAL LAW SENTENCE APPEAL NO QUESTION OF PRINCIPLE.

Citation: Regina v Scott [2000] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 25 August 2000
Judge(s): James J, Sperling J

Background

The applicant pleaded guilty to two charges under the Drug Misuse and Trafficking Act 1985: supplying methylamphetamine in not less than the commercial quantity, and manufacturing methylamphetamine in not less than the commercial quantity. Both offences carried a maximum penalty of 20 years imprisonment or 3,500 penalty units, or both.

The applicant had been a significant participant in a large illicit drug business run by a man named Kalache. Although the applicant was recruited by Kalache and was found to have been susceptible to his influence, he was deeply involved in the operation, continued criminal activity after Kalache's arrest, and was found to have been a dealer in his own right. Documentary records seized from his home evidenced extensive drug transactions.

Woods DCJ sentenced the applicant in the District Court to concurrent sentences of a four-year minimum term and a two-year additional term on each count, taking into account 16 further offences relating to the supply of body-building drugs. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentence was excessive in itself, having regard to the objective and subjective features of the offending
  • Whether the sentence was disproportionate compared to the sentences imposed on other participants in the same drug operation (the parity principle)
  • Whether the sentencing judge made an adequate allowance for special circumstances in adjusting the statutory formula governing minimum and additional terms
  • Whether undue weight was given to the additional offences taken into account on a Form 2 (offences acknowledged by the offender and considered at sentencing without separate conviction)

Decision

On the first ground, the Court found the sentence was plainly justified. The sentencing judge had correctly weighed the significant objective criminality against the applicant's subjective circumstances, including his youth, guilty plea, contrition, and prior good character. General deterrence requires substantial full-time custodial sentences for commercial drug trafficking and manufacture.

On parity, the Court was prepared to assume, without deciding, that the parity principle could extend to participants in the same criminal enterprise even where they were not charged with identical offences. Applying the High Court's approach in Postiglione, the relevant question was whether sentences were patently disproportionate relative to each other. The Court reviewed the sentences imposed on five other participants. Three received heavier sentences than the applicant, and two received lighter ones. While sentences imposed on some co-participants were lenient, the applicant's sentence was not shown to be so patently disproportionate as to warrant appellate intervention.

On the special circumstances ground, the Court found no error. The sentencing judge had found special circumstances and made an adjustment to the statutory formula, reducing the minimum term below the formula default. Any further adjustment would have reduced the minimum term below what the objective criminality required, and the extent of the adjustment remained within the sentencing judge's discretion.

On the Form 2 ground, the Court accepted that the additional offences, though individually minor and summarily triable, were numerous and collectively contributed to the applicant's overall criminality. The sentencing judge's assessment of their significance was not shown to be excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that general deterrence requires substantial full-time custodial sentences for commercial drug trafficking and manufacture, a principle applied equally to both supply and manufacture offences.
  • In dismissing the parity ground, the Court applied Postiglione rather than the narrower test in Gibson, noting that parity concerns can arise where sentences across participants in the same operation are patently disproportionate, even if their individual criminal responsibilities differ.
  • A finding of special circumstances gives a sentencing judge discretion to adjust the statutory minimum/additional term formula, but the minimum term cannot be reduced below what the objective criminality of the offence properly demands.
  • Offences taken into account on a Form 2 can legitimately carry significant weight at sentencing even where each individual offence is minor, provided the sentencing judge does not over-emphasise their contribution to overall criminality.
  • No error was established in any of the four grounds advanced, and the appeal was dismissed despite leave being granted.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)

Cases:
- R v Clark (Unreported, NSWCCA, 15 March 1980)
- R v Atkins (Unreported, NSWCCA, 3 November 1998)
- R v Gibson (1991) 56 ACrimR 1
- R v Postiglione (1997) 189 CLR 295
- R v Fabian (1992) 64 ACrimR 365
- R v Le Cerf (1975-76) 8 ALR 349
- R v Brown (Unreported, NSWCCA, 19 October 1999)