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Court of Criminal Appeal 25 February 2000

R v Bruce

[2000] NSWCCA 39

Drugs
CRIMINAL LAW SENTENCE WHETHER SPECIAL CIRCUMSTANCES

Citation: R v Bruce [2000] NSWCCA 39
Court: Court of Criminal Appeal, New South Wales
Date: 25 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The applicant, a 62-year-old man with an otherwise creditable background, pleaded guilty early to supplying commercial quantities of methadone, cocaine and ecstasy. His offending arose from an association with a person significantly involved in drug trafficking in New South Wales. Despite a prior criminal record, this was his first custodial sentence.

At the time of sentencing, the applicant had already made substantial progress toward rehabilitation and had ceased his drug use. A general practitioner's report before the sentencing judge described him as suffering from severe depression linked to his drug withdrawal, a condition reasonably inferred to have persisted at the date of sentence.

The District Court (Woods DCJ) imposed concurrent five-year sentences on each charge, structured as a minimum term of three years and nine months and an additional term of one year and three months. The applicant sought leave to appeal, arguing only that special circumstances existed warranting a departure from the standard proportion between minimum and additional terms.

  • Whether the sentencing judge erred in declining to find "special circumstances" under s 5(2) of the Sentencing Act 1989 that would justify a longer than usual additional term
  • Whether the applicant's depression, early guilty pleas, mature age, first experience of imprisonment, and rehabilitation prospects individually or collectively constituted special circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hidden J accepted that the discretion to find special circumstances under s 5(2) of the Sentencing Act 1989 is broad and may be engaged by a wide variety of factors, as confirmed in R v Moffitt (1990) 20 NSWLR 114. However, the central requirement remains that there must be a demonstrated purpose served by a longer than usual additional term.

On the question of the applicant's depression, the Court noted that while the condition had its origins in drug withdrawal, it was a condition suffered by many prisoners as a consequence of imprisonment generally. Importantly, the condition was amenable to treatment available within the prison system, as confirmed by a psychiatric report received during the appeal. This meant the depression did not rise to the level of particularly onerous custodial conditions sufficient to ground a finding of special circumstances on its own.

The remaining factors relied upon, namely the early guilty pleas, the applicant's maturity, his lack of prior imprisonment, and his strong rehabilitation prospects, had all been taken into account by the sentencing judge in arriving at the overall five-year term. The additional term of fifteen months was, as the Crown submitted, adequate to support the applicant's continuing rehabilitation upon release.

Hidden J acknowledged that it might have been open to the sentencing judge to find special circumstances on this material, but concluded that the failure to do so did not constitute error. Carruthers AJ agreed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the discretion to find special circumstances under s 5(2) of the Sentencing Act 1989 is not to be unduly circumscribed and may be enlivened by a wide range of factors, consistent with the principles stated in R v Moffitt.
  • A finding of special circumstances nonetheless requires a demonstrated purpose served by extending the additional term beyond its standard proportion; this threshold was not met on the facts presented.
  • Depression arising from drug withdrawal did not constitute special circumstances where the condition was treatable within the prison system and was not materially distinct from what many prisoners experience.
  • Factors such as early guilty pleas, mature age, a first custodial sentence, and strong rehabilitation prospects, while relevant to the overall sentence, do not automatically compel a finding of special circumstances where they have already informed the head sentence.
  • In dismissing the appeal, the Court drew a distinction between a sentencing discretion that might have been exercised differently and one that was exercised in error, affirming that the absence of elaboration in the sentencing remarks did not itself establish appealable error.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Kalache [2000] NSWCCA 2
- R v Moffitt (1990) 20 NSWLR 114
- R v Sellen (1991) 57 A Crim R 313