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Court of Criminal Appeal 30 November 2000

Regina v Araya

[2000] NSWCCA 504

Also reported as [2000] 119 A Crim R 100
Drugs
SENTENCING SEVERITY APPEAL NEED FOR COURT TO RE SENTENCE.

Citation: Regina v Araya [2000] NSWCCA 504
Court: NSW Court of Criminal Appeal
Date: 30 November 2000
Judge(s): Wood CJ at CL, Dunford J, Carruthers AJ

Background

The applicant was charged with one count of supplying a prohibited drug (methylamphetamine) by having in his possession not less than a large commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. Police stopped a hired van he was driving in Bankstown in January 1997 and found approximately 1,050 grams of methylamphetamine in a locked cooler bag, along with a set of scales. Keys found on the applicant's person unlocked the bag.

The applicant denied knowledge of the drugs, claiming the van had been organised by his son and the bag had been left by an unknown third party. His account was significantly undermined at trial when telephone records disproved his claim of having received a call about collecting the bag at a service station en route.

The trial judge directed the jury to acquit the applicant of possessing not less than a large commercial quantity (the section 25(2) charge), because the Crown had not established that he knew the bag contained at least 1,000 grams. The jury nonetheless convicted him of the lesser offence under section 25(1), covering supply of a trafficable quantity (not less than 3 grams). Despite this, the sentencing judge, along with both counsel, proceeded under the mistaken belief that the conviction was for the section 25(2) offence.

  • Whether the sentencing judge erred by proceeding on the basis that the applicant was convicted under section 25(2) rather than section 25(1) of the Drug Misuse and Trafficking Act 1985, thereby applying the wrong maximum penalty.
  • Whether the total sentence was manifestly excessive, and in particular whether special circumstances existed that would justify varying the standard ratio between the minimum and additional terms.
  • Whether the applicant should be classified as a mere courier for sentencing purposes.

Decision

The Court of Criminal Appeal found that the sentencing judge had plainly erred by treating the conviction as one under section 25(2) rather than section 25(1). This error had two concrete consequences: the judge directed his mind to a maximum penalty of 20 years imprisonment instead of the correct 15 years, and he consulted Judicial Commission statistics for section 25(2) offences rather than the applicable section 25(1) statistics. The error required the Court to re-sentence the applicant from scratch.

On the question of the drug quantity, the Court accepted that it was entitled to evaluate the seriousness of the offence by reference to the upper end of the range for a section 25(1) offence, which was approximately 249 grams. The Court also rejected the applicant's contention that he should be classified as a mere courier, applying the principles set out by the High Court in R v Olbrich (1999) 199 CLR 270.

Regarding special circumstances, the Court declined to depart from the standard relationship between the non-parole and total terms. While the applicant had strong subjective circumstances, including prior good character and his age, these were weighed against the serious objective features of the offence and the principle of general deterrence, which the Court described as a constant consideration in drug supply sentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence imposed by Judge Luland quashed.
  • In lieu, the applicant sentenced under section 25(1) of the Drug Misuse and Trafficking Act 1985 to a total term of three years imprisonment, dating from 11 June 1999 and expiring 10 June 2002.
  • Non-parole period fixed at two years and three months, dating from 11 June 1999 and expiring 10 September 2001.

Key Takeaways

  • Sentencing a convicted person under the wrong provision of the Drug Misuse and Trafficking Act 1985 constitutes a material error requiring appellate re-sentencing, particularly where the error affects the maximum penalty and the sentencing statistics consulted.
  • Under section 25(3) of the Act, a jury may return a verdict on the lesser section 25(1) offence even where the indictment charges a section 25(2) offence, and the sentencing court must ensure it proceeds on the basis of the provision actually reflected in the verdict.
  • Where a section 25(1) conviction arises from possession of a quantity falling between the trafficable threshold (3 grams) and the commercial threshold (249 grams), the Court of Criminal Appeal confirmed it is appropriate to assess the offence's objective seriousness by reference to the upper end of that range.
  • Classifying a drug offender as a mere courier requires a factual foundation consistent with R v Olbrich; the High Court's approach in that case limits the extent to which courts can make favourable findings about an offender's role absent sufficient evidentiary support.
  • Strong subjective circumstances, including prior good character and age, do not automatically warrant a finding of special circumstances altering the standard non-parole to total sentence ratio where serious objective factors remain.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), sections 25(1), 25(2), 25(3), 31, 32, 33

Cases
- R v Lee (1994-1995) 76 A Crim R 271
- R v Clark (CCA, unreported, 15 March 1990)
- R v Bardo (CCA, unreported, 14 July 1992)
- R v Ozer (CCA, unreported, 9 November 1993)
- R v Sandford (1994) 33 NSWLR 172
- R v Cocking [1999] NSWCCA 311
- R v Olbrich (1999-2000) 199 CLR 270