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Court of Criminal Appeal 26 March 2001

REGINA v. CN

[2001] NSWCCA 100

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCES JUVENILE OFFENDER SENTENCE ACCORDING TO LAW SENTENCE NOT IN ERROR.

Citation: Regina v CN [2001] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 26 March 2001
Judges: Greg James J; Smart AJ

Background

The appellant was a 16-year-old who had pleaded guilty before a magistrate to two counts of supplying a prohibited drug in not less than the commercial quantity. The first charge involved 629 grams of heroin and the second involved 400 grams of cocaine, both well above the prescribed commercial quantity of 250 grams for each drug. A goods-in-custody matter involving approximately $48,000 in cash was also dealt with on a Form 1.

The appellant had acted as a courier for an organised drug operation under the influence of an older man. The sentencing judge in the District Court found the appellant had participated in similar offending on prior occasions, and that the estimated street value of the drugs seized was approximately $500,000. The offences carried a maximum penalty of 20 years imprisonment.

The District Court imposed concurrent sentences of three years and six months on each count, with a non-parole period of 18 months, and directed that the sentences be served wholly in a detention centre given the appellant's age. The appellant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge placed excessive weight on general deterrence.

  • Whether the sentences were manifestly excessive, having regard to the appellant's age, deprived background, naivety, prospects for rehabilitation, and mitigating factors including a full confession, guilty plea, and assistance to police
  • Whether the sentencing judge erred in the weight given to general deterrence when sentencing a juvenile offender
  • Whether the direction that the sentences be served in a detention centre operated as a form of mitigation, and whether the sentencing judge erred by extending the term in recognition of that direction

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. The Court accepted that the direction to serve the sentence in a detention centre did operate as a form of mitigation going to the nature of the penalty, but found no indication in the remarks on sentence that the judge had improperly extended the term in compensation for giving that direction.

On the question of general deterrence, the Court held the sentencing judge was entitled to emphasise both personal and general deterrence in the circumstances. The appellant had prior involvement in similar offending and the sentencing judge properly found that the appellant understood, to a considerable extent, the seriousness of his conduct. The Court accepted that the appellant's motive may not have been simple greed, and that he had been preyed upon given his disadvantaged background, but those factors did not undermine the conclusion that the offending was extremely serious.

The Court acknowledged the substantial mitigating material before the sentencing judge, including 41 character references, the full confession and guilty plea, the appellant's attempts to assist police in identifying his handler, and genuine prospects for rehabilitation. However, because the offending could not be treated as isolated or a first offence, the mitigating factors did not bring the sentence outside the range lawfully available to the sentencing judge.

Applying the principle that a discretionary sentencing decision will only be disturbed on appeal if it falls outside the available range, the Court concluded the sentence was not manifestly excessive and declined to intervene.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • When sentencing juvenile offenders for serious drug supply offences, considerations of general deterrence and public protection may outweigh the subjective features that ordinarily attract greater leniency for young offenders.
  • A direction that a sentence be served in a detention centre operates as a form of mitigation going to the nature of the penalty, but a sentencing judge must not extend the term of imprisonment in exchange for giving that direction.
  • Juvenile offenders who commit adult offences progressively lose the benefit of more lenient treatment under children's legislation as they approach adulthood and demonstrate adult knowledge of their conduct, with the degree of punishment depending on the severity and nature of the offending.
  • No error was established merely because a sentencing judge found substantial mitigating material, where the overall weight of that material did not take the sentence outside the range lawfully available.
  • Under s 6(b) of the Children (Criminal Proceedings) Act 1987, children who commit offences bear responsibility for their actions, a principle the Court of Criminal Appeal confirmed was properly engaged on these facts.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Justices Act 1902 (NSW), s 51A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6(b), 9

Cases cited: None recorded in the judgment.