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Court of Criminal Appeal 21 June 2000

Regina v Davidson

[2000] NSWCCA 393

Drugs

Citation: Regina v Davidson [2000] NSWCCA 393
Court: NSW Court of Criminal Appeal
Date: 21 June 2000
Judge(s): Newman J; Grove J

Background

The applicant pleaded guilty in the District Court to supplying amphetamine (6.6 grams), an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence arose from a police undercover operation on the NSW south coast, in which an undercover officer purchased amphetamine from the applicant for $400. A second count related to an agreement to supply that did not ultimately proceed. The applicant also asked the sentencing judge to take into account three additional matters on a Form 1: possessing cannabis, failing to keep a firearm safe, and possessing a firearm while unlicensed.

Howie DCJ sentenced the applicant in the Moruya District Court on 10 February 2000 to a head sentence of 27 months, comprising a minimum term of nine months and an additional term of 18 months. The applicant, who had no prior custodial history, sought leave to appeal against that sentence. He appeared in person before the Court of Criminal Appeal.

A pre-sentence report prepared by the Probation and Parole Service had been tendered before the sentencing judge without objection. On appeal, the applicant filed an unchallenged affidavit contesting several matters in that report, including a reference suggesting he was closely associated with the Comanchero motorcycle club.

  • Whether the sentencing judge erred in imposing a term of full-time custody for a drug supply offence of this nature and quantity
  • Whether prejudicial and inaccurate material in the pre-sentence report, admitted without objection at first instance, caused procedural unfairness justifying appellate intervention
  • Whether a non-custodial sentencing option (such as periodic detention or a community service order) should have been considered
  • Whether the sentence imposed was manifestly excessive

Decision

Newman J accepted that the sentencing judge had not erred in principle by imposing full-time custody. The Court of Criminal Appeal has made clear that, except in truly exceptional circumstances, full-time imprisonment is the appropriate response to drug supply offences, to denounce such conduct and deter others.

However, Newman J identified a significant concern. The pre-sentence report contained a reference to the applicant's alleged association with the Comanchero motorcycle club. That reference was unchallenged before the sentencing judge, but the applicant's uncontested affidavit on appeal demonstrated it was likely incorrect. Newman J characterised the inclusion of that material as procedurally unfair to the applicant, even though no criticism was directed at the sentencing judge, who had received the report in the ordinary way without objection.

The Court noted that the Crown itself conceded on appeal that a fixed term of six months would have attracted no complaint from the prosecution, raising a question about whether the original sentence was manifestly excessive for the quantity involved. Newman J observed that the prejudicial material may even have influenced the decision to prosecute the matter on indictment in the District Court rather than summarily, though he ultimately put that speculation to one side.

Taking into account the period of full-time custody already served and the procedural unfairness arising from the erroneous report material, Newman J concluded that justice required the sentence to be quashed. In substitution, the Court imposed a three-year good behaviour bond under s 95 of the Crimes (Sentencing Procedure) Act 1999. Grove J agreed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of Howie DCJ of 10 February 2000 quashed
  • In lieu of that sentence, the applicant was ordered to enter into a three-year good behaviour bond commencing 21 June 2000 and expiring 20 June 2003, on conditions including:
  • Appearing before the court if called upon during the bond period
  • Being of good behaviour throughout the bond period
  • Notifying the Registrar of the Court of any change in residential address

Key Takeaways

  • Full-time custody remains the standard sentencing response for drug supply offences in NSW, save for truly exceptional circumstances, a principle the Court of Criminal Appeal confirmed applies at District Court level.
  • Procedural unfairness arising from inaccurate prejudicial material in a pre-sentence report can warrant appellate intervention, even where the material was admitted without objection at first instance and no fault is attributed to the sentencing judge.
  • An uncontested affidavit filed on appeal was sufficient for the Court of Criminal Appeal to treat disputed pre-sentence report assertions as erroneous.
  • In substituting a sentence, the Court took into account the period of full-time custody already served, treating that time as satisfying the punitive and denunciatory purposes of the original custodial term.
  • Under s 95 of the Crimes (Sentencing Procedure) Act 1999, the Court of Criminal Appeal has power to impose a good behaviour bond as a substitute sentence following a successful appeal against a custodial term.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 95

Cases:
No specific cases were cited by name in the text of the judgment.