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Court of Criminal Appeal 21 February 2000

Regina v Elomar

[2000] NSWCCA 431

Drugs
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY

Citation: Regina v Elomar [2000] NSWCCA 431
Court: NSW Court of Criminal Appeal
Date: 21 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The applicant pleaded guilty in the Parramatta District Court to one count of supplying a prohibited drug (cannabis, 359.3 grams) under the Drug Misuse and Trafficking Act 1985. Despite the quantity falling below the threshold that would make the offence mandatorily indictable (1,000 grams), the prosecution elected to proceed on indictment rather than allow the matter to be dealt with summarily in the Local Court.

The sentencing judge imposed a minimum term of nine months imprisonment and an additional term of one year and nine months, producing a total sentence of two years and six months. The judge took into account on a Form 1 two counts of possessing heroin, one count of goods in custody, and three counts of unlawfully possessing a prescribed restricted substance.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, pointing to the relatively small amount of cannabis involved, his guilty plea, recent rehabilitation efforts, and the fact that the offence could have been dealt with summarily had the Crown not elected otherwise.

  • Whether the fact that a matter could have been dealt with summarily in the Local Court (had the prosecution not elected for indictment) is a relevant consideration for the sentencing court in the District Court.
  • Whether the sentencing judge's failure to expressly refer to the Local Court maximum penalty in his remarks on sentence amounted to an error warranting appellate intervention.
  • Whether the sentence imposed was manifestly excessive in all the circumstances, including the applicant's significant criminal history and the fact he was on parole at the time of the offence.

Decision

The Court confirmed the established principle, drawn from Regina v Crombie, that the availability of summary disposal is a relevant but not determinative factor in District Court sentencing. A sentencing judge is not required to treat the Local Court maximum as a ceiling on the available sentence; rather, the fact of summary eligibility is one circumstance to be weighed in the exercise of sentencing discretion, and its relevance depends on the objective and subjective circumstances of the individual case.

The Court found it difficult to conclude that an experienced sentencing judge would have entirely overlooked the Local Court maximum, but noted that no express reference to it appeared in the remarks on sentence. Because the applicant was entitled to rely on that silence, and given the relatively small quantity of cannabis and the applicant's candid admission that he intended to sell some of it, the Court found sufficient basis to intervene.

Balancing those mitigating factors against the applicant's extensive criminal history (23 prior offences, including armed robbery) and the serious aggravating feature that he was on parole at the time of the offending, the Court declined to disturb the minimum term of nine months. It did, however, reduce the additional term from one year and nine months to one year and three months, producing an overall sentence of two years.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld in part.
  • Minimum term of nine months imprisonment (commencing 1 October 1999, expiring 30 June 2000) confirmed.
  • Additional term varied from one year and nine months to one year and three months (commencing 1 July 2000, expiring 30 September 2001).

Key Takeaways

  • The Court of Criminal Appeal confirmed that a prosecution's election to proceed on indictment, where summary disposal was available, is a relevant consideration in sentencing but does not cap the available penalty at the Local Court maximum.
  • Where a sentencing judge makes no express reference to the Local Court maximum in remarks on sentence, that omission may justify appellate intervention, even where a deliberate oversight seems unlikely given the judge's experience.
  • An offender's commission of the subject offence while on parole remains a significant aggravating factor capable of supporting Crown election to proceed on indictment, regardless of the relatively modest quantity of the drug involved.
  • Reducing the additional term (the non-parole period equivalent in the old sentencing regime) can constitute a sufficient remedy where the overall sentence is excessive but the minimum term remains appropriate.
  • Sufficient subjective and objective criminality existed here to justify an overall sentence of two years, notwithstanding that the cannabis quantity was only marginally above the traffickable threshold.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Criminal Procedure Act 1986 (NSW), s 33C(1), Pt 9A

Cases:
- Regina v Crombie [1999] NSWCCA 297