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2
Court of Criminal Appeal 20 November 2000

R v CARTER

[2000] NSWCCA 490

Drugs

Citation: R v Carter [2000] NSWCCA 490
Court: NSW Court of Criminal Appeal
Date: 20 November 2000
Judge(s): Barr J; Carruthers AJ

Background

The applicant pleaded guilty before a magistrate to supplying prohibited drugs on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act. She was committed to the District Court for sentence. The offending involved supplying small quantities of heroin to an undercover police officer on five occasions between late May and early June 1999, with further supply admissions covering January to May of that year.

Howie DCJ sentenced the applicant to a total of three years' imprisonment, comprising a minimum term of two years and an additional term of one year. The applicant appeared in person before the Court of Criminal Appeal, seeking leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the applicant's prior recognisances under s 558 of the Crimes Act had legally expired by the time she committed the offences, thereby removing them as an aggravating factor
  • Whether the absence of comparable sentencing statistics for the relatively new offence under s 25A rendered the sentence excessive
  • Whether the applicant's heroin addiction and early guilty plea warranted greater leniency
  • Whether the applicant had a justifiable sense of grievance when her sentence was compared to that imposed on a co-offender

Decision

The Court rejected the argument that the recognisances had ceased to operate before the offending occurred. The applicant had been placed on three-year recognisances in September 1997 following confirmed convictions for drug and driving offences. A breach report had been filed, but the Court found the recognisances remained legally operative throughout the entire period of the offending, continuing until July 1999 when a fixed term was imposed for the breach.

On the sentencing statistics point, the Court acknowledged that s 25A was a recently enacted provision with limited comparable cases at the time of sentencing. However, that fact alone did not establish that the sentence was excessive. Howie DCJ had correctly approached the matter on established sentencing principles and made permissible reference to sentences for the less serious supply offence under s 25 of the same Act.

The Court found that the applicant's heroin addiction did not entitle her to leniency, but confirmed that Howie DCJ had given careful and substantial weight to her early guilty plea. Regarding the co-offender comparison, the Court noted that the co-offender, Ms Kelly, had received a lesser sentence after a detailed analysis by Knight DCJ, who found her role was less significant, that she had acted under the strong influence of another co-offender, and that her prior record contained no drug offences. By contrast, the applicant had a substantial record including convictions for drug possession, cultivation, and self-administration, and faced the additional aggravating factor of the existing recognisances. The Court concluded that no justifiable sense of grievance arose from the comparison.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A recognisance under s 558 of the Crimes Act does not cease to operate merely because a breach report has been filed; it remains in force until formally dealt with by a court, and its existence during the commission of offences is a legitimate aggravating factor.
  • In sentencing for a newly enacted offence with limited comparable decisions, a sentencing court does not err by reasoning from analogous, less serious offences under the same legislation, provided it applies established sentencing principles.
  • Heroin addiction does not, of itself, entitle an offender to a reduction in sentence for drug supply offences.
  • Where a co-offender receives a lesser sentence, a justifiable sense of grievance is not established if the disparity is explained by genuine differences in role, criminal history, and the presence or absence of aggravating factors particular to each offender.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence well within the sentencing judge's proper discretionary range will not be disturbed on appeal as manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 558 (recognisances)
- Drug Misuse and Trafficking Act (NSW), s 25 (supply of prohibited drugs) and s 25A (ongoing supply of prohibited drugs)

Cases:
No cases were formally cited in the judgment text. The decisions of Howie DCJ (sentencing of the applicant and co-offender Tippler) and Knight DCJ (sentencing of co-offender Kelly) were discussed in the context of the co-offender comparison ground.