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9
Court of Criminal Appeal 13 December 2000

Regina v Bacon

[2000] NSWCCA 549

Also reported as 120 A Crim R 28
Drugs

Citation: Regina v Bacon [2000] NSWCCA 549
Court: NSW Court of Criminal Appeal
Date: 13 December 2000
Judge(s): Simpson J, Carruthers AJ, Smart AJ

Background

The applicant pleaded guilty in the District Court to supplying a prohibited drug on an ongoing basis, contrary to section 25A of the Drugs Misuse and Trafficking Act 1985. The offences involved three separate supplies of amphetamine (also containing methylamphetamine) to an undercover police officer over a one-month period in early 1999, totalling approximately 68.53 grams by gross weight. The actual pure drug content was significantly lower, ranging from 0.5% to 6.17% purity, with a total pure drug content of approximately 2.4 to 2.6 grams.

Howie DCJ sentenced the applicant to three years' imprisonment (minimum term of two years, additional term of twelve months) for the drug offence, finding special circumstances to justify that structure. An accumulated fixed term of six months was also imposed for a separate assault occasioning actual bodily harm conviction. The drug sentence was to commence after the assault sentence was served.

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the drug sentence was manifestly excessive.

  • Whether the sentence imposed for ongoing drug supply was manifestly excessive in all the circumstances
  • Whether adequate weight was given to the plea of guilty, the nature and quantity of the drug, the short period of offending, and the applicant's voluntary cessation of supply before apprehension
  • Whether the sentencing judge's identification and application of special circumstances was sufficient, particularly in fixing the ratio between the minimum and additional terms
  • Whether the sentence adequately reflected the low purity of the drugs supplied

Decision

The Court granted leave to appeal and allowed the appeal, finding the original sentence manifestly excessive. The Court identified that the sentencing judge had not expressly quantified the discount for the guilty plea, noting this was a procedural shortcoming brought into sharper focus by the Court's subsequent decision in R v Thomson; R v Houlton (2000). Although the judge mentioned several mitigating factors, the Court found they had not been given sufficient weight in combination.

Particular significance was attached to the applicant's voluntary cessation of drug supply before apprehension, prompted by his wife's ultimatum. The Court accepted this as meaningful evidence of rehabilitation, especially when combined with the applicant's stable employment, family support, and the impact that pre-sentence custody had already had on him. These factors pointed to the applicant having reached a genuine turning point.

The Court also found the structure of the sentence unsatisfactory when viewed through the lens of totality. After accounting for all custodial periods, the effective allowance for special circumstances amounted to only approximately three-quarters of a month, which the Court regarded as wholly inadequate given the applicant's circumstances, including that this was his first period of full-time custody and his clear need for ongoing rehabilitation and supervision following release.

The very low purity of the drugs supplied was an additional factor weighing in favour of a reduced sentence. The Court re-sentenced the applicant and directed that he be released on parole at the expiration of the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant re-sentenced (specific new terms not fully set out in the extracted text)
  • Direction that the applicant be released on parole at the expiration of the non-parole period

Key Takeaways

  • Voluntary cessation of criminal conduct before apprehension, particularly where supported by evidence of rehabilitation and changed circumstances, is a significant mitigating factor in drug supply sentencing.
  • Where special circumstances are found to justify an adjusted minimum-to-additional term ratio, the structural outcome must reflect a meaningful departure from the standard proportions; a notional allowance of less than one month was held to be inadequate on these facts.
  • The low purity of drugs supplied is a relevant consideration in assessing objective seriousness, independent of gross weight figures.
  • Amphetamine and methylamphetamine are to be treated equivalently for sentencing purposes and placed in the middle range of drug seriousness, below heroin and cocaine.
  • Following R v Thomson; R v Houlton, sentencing courts are expected to identify expressly the discount allowed for a guilty plea, rather than leaving it as an implied element of the overall sentence.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25A
- Sentencing Act 1989 (NSW), s 5(2)
- Listening Devices Act 1984 (NSW)
- Crimes Act 1900 (NSW)
- Drugs Misuse and Trafficking (Ongoing Dealing) Bill

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309