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Court of Criminal Appeal 22 March 2000

R v Mason

[2000] NSWCCA 82

Drugs

Citation: R v Mason [2000] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 22 March 2000
Judge(s): Abadee J, James J

Background

The appellant pleaded guilty in the District Court to a single charge of supplying a prohibited drug, specifically 3.1 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The supply occurred on 21 August 1998, when an undercover police operative attended the appellant's home and purchased the quantity for $1,000. The appellant was arrested in November 1998.

Acting Judge Nader sentenced the appellant to four years imprisonment, comprising a minimum term of three years commencing 10 June 1999 and an additional term of one year. His Honour declined to find special circumstances warranting a variation of the usual ratio between minimum and additional terms. The sentence was partially concurrent with an unrelated sentence already being served for two counts of assault occasioning actual bodily harm.

The appellant sought leave to appeal the sentence on two grounds: that the sentencing judge had applied the wrong maximum penalty, and that special circumstances should have been found justifying a longer additional (parole) term relative to the minimum term.

  • Whether the sentencing judge erred by applying the maximum penalty for an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (20 years) rather than the correct maximum under s 25(1) (15 years), and whether that error required resentencing.
  • Whether the sentencing court erred in declining to find special circumstances warranting a departure from the standard ratio between minimum and additional terms.

Decision

The Court of Criminal Appeal found that the Crown had incorrectly informed Acting Judge Nader that the maximum penalty was 20 years, when the correct maximum for the offence charged under s 25(1) was 15 years. The difference between s 25(1) and s 25(2) was significant: not only was there a five-year gap in maximum imprisonment, but the maximum fine under s 25(2) was almost double that under s 25(1). The Crown accepted the error but argued it did not require resentencing. The Court rejected that submission, holding the error was sufficient to justify intervention and resentencing.

On resentencing, the Court also noted that the quantity involved, 3.1 grams, was only 0.1 grams above the trafficable level and below the indictable quantity for methylamphetamine. The offence was one that could have been dealt with in the Local Court, where the maximum available penalty would have been approximately two years. The Court considered this relevant context in arriving at the appropriate sentence.

On the question of special circumstances, the Court found that additional materials placed before it on appeal, combined with the accumulated nature of the sentence and the need for a longer rehabilitation period, justified a finding of special circumstances. Abadee J noted that the sentencing court had considered but rejected special circumstances, and that on resentencing the Court was entitled to assess the issue afresh in light of all available materials, including reports from prison authorities.

Orders Made

  • Leave to appeal the sentence granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Substituted sentence: 18 months imprisonment comprising a minimum term of 12 months commencing 10 June 1999 and expiring 9 June 2000, and an additional term of 6 months commencing 10 June 2000.
  • The appellant is eligible for release on parole on 9 June 2000.

Key Takeaways

  • Applying the wrong statutory maximum penalty in sentencing is a material error. The Court of Criminal Appeal held that the discrepancy between s 25(1) and s 25(2) of the Drug Misuse and Trafficking Act 1985 was substantial enough to require resentencing, notwithstanding the Crown's submission that the resulting sentence was otherwise within a proper exercise of discretion.
  • Where an offence could have been dealt with summarily in the Local Court, the sentencing court may properly take into account the lower maximum penalty that would have applied in that jurisdiction as part of the resentencing exercise.
  • A single charge of actual supply does not preclude the sentencing court from considering surrounding context, such as evidence that the transaction was part of an ongoing commercial arrangement, provided that context is used only to illuminate the nature of the single offence and not to punish conduct beyond the charge.
  • Special circumstances, which allow a court to depart from the standard statutory ratio between minimum and additional terms of imprisonment, may be established by reference to accumulated sentences, rehabilitation needs, and post-sentence materials not available at the original hearing.
  • In dismissing the Crown's argument against resentencing, the Court of Criminal Appeal confirmed that where an error goes to a foundational element of the sentencing exercise, the appellate court will ordinarily conduct the sentencing exercise afresh rather than simply uphold the original result.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 32
- Evidence Act (NSW)

Cases:
- R v Chanh Thanh Ma (CCA, 31 March 1995, unreported)
- The Queen v Grant (Vic CCA, 27 June 1994, unreported)
- Stol v The Queen (1989) 44 A Crim R 137 (WA CCA)
- R v Selim (CCA, 19 May 1998, unreported)