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Court of Criminal Appeal 11 April 2001

R v Giurgis

[2001] NSWCCA 129

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG

Citation: Giurgis v R [2001] NSWCCA 129
Court: New South Wales Court of Criminal Appeal
Date: 11 April 2001
Judge(s): Wood CJ at CL; Smart AJ

Background

The applicant pleaded guilty in the District Court to one count of supplying heroin, an offence carrying a maximum penalty of 15 years imprisonment or a $220,000 fine under the Drug Misuse and Trafficking Act 1985. Police had observed him in the early hours of 3 March 2000 at Arncliffe conducting what appeared to be a roadside drug transaction. He was found with $580 in cash and 33 balloons containing 5.5 grams of heroin. He admitted to selling drugs to fund his own heroin habit.

The District Court sentenced the applicant to 16 months imprisonment with a non-parole period of 12 months. The sentencing judge declined to find "special circumstances" that would justify departing from the standard ratio between the head sentence and the non-parole period. The applicant accepted the overall sentence length as within range but challenged the sentencing judge's approach to special circumstances.

The applicant was 24 years old at the time of sentencing, had no prior drug offences, had ceased using drugs following his arrest, and had returned to full-time employment as a painter in the three months preceding the sentencing date.

  • Whether the sentencing judge erred in declining to find "special circumstances" that would justify adjusting the proportion between the head sentence and the non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Decision

The Court of Criminal Appeal found that the sentencing judge had approached the special circumstances question incorrectly. The exchange between the judge and counsel at the original sentencing had focused solely on whether the offence could be dealt with by a non-custodial sentence or a lesser term, rather than on whether subjective factors justified a different ratio between the head sentence and the non-parole period. As a result, the judge effectively closed off any proper submissions on that point.

Because the correct question had not been addressed, the Court granted leave to appeal and reconsidered the matter afresh. Wood CJ at CL identified a range of relevant subjective circumstances, including the applicant's young age, his brief exposure to drugs (having first used heroin only two months before the offence), his steps to distance himself from drug use and unsavoury associates after arrest, his return to stable employment, and the favourable pre-sentence report confirming good prospects.

The Court concluded that it was in both the applicant's and the community's interest to encourage his rehabilitation by affording him an extended period of post-release supervision. Reducing the non-parole period achieved that outcome while leaving the head sentence intact.

Orders Made

  • Appeal allowed.
  • Non-parole period reduced to eight months (to expire 4 August 2001).
  • Head sentence of 16 months otherwise confirmed.
  • Applicant directed to be released at the expiration of the non-parole period.

Key Takeaways

  • A sentencing court's inquiry into "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 must be directed to whether subjective or other factors justify adjusting the ratio between the head sentence and the non-parole period. It is a distinct question from whether the overall sentence length is appropriate.
  • Where a sentencing judge's reasoning on special circumstances is misdirected, the Court of Criminal Appeal may grant leave and re-exercise the sentencing discretion from scratch.
  • Young age and genuine rehabilitative steps taken after arrest, including ceasing drug use and returning to employment, can constitute special circumstances warranting a reduced non-parole period and an extended period of post-release supervision.
  • Reducing the non-parole period is one mechanism for promoting rehabilitation and community protection through supervised reintegration, consistent with the principles discussed in R v Moffatt (1990) 20 NSWLR 144 and R v Phelan (1999) 66 A Crim R 446.
  • Accepting an inevitable conviction and entering an early guilty plea remained relevant mitigating factors, even where the overall sentence was not disturbed.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- R v Moffatt (1990) 20 NSWLR 144
- R v Phelan (1999) 66 A Crim R 446