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12
Court of Criminal Appeal 20 April 2001

R v Khaled

[2001] NSWCCA 169

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE SUPPLY OF DRUGS ERROR AS TO QUANTITY SUPPLIED S 25A DRUG MISUSE AND TRAFFICKING ACT

Citation: Khaled v R [2001] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 20 April 2001
Judge(s): Wood CJ at CL; Sully J

Background

The appellant pleaded guilty in the District Court to three counts of supplying heroin within a thirty-day period, contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The sales, each for $100, were made to an undercover police operative in Wollongong in August 1999. The sentencing judge, Moore DCJ, imposed four years imprisonment with a non-parole period of two years.

On appeal, the appellant argued that the sentencing judge had overstated the quantity of heroin involved. The analysts' certificate confirmed that the total quantity across the three sales was 0.19 grams, substantially less than the 0.4 grams the judge had calculated. The Crown conceded this factual error, and leave to appeal was granted on that basis.

The appellant's criminal history was extensive, stretching back to 1983 and including multiple prior convictions for drug supply, as well as offences of robbery in company and break, enter and steal. Critically, the appellant was on parole for a drug supply offence at the time of the current offending, a fact the sentencing judge had apparently overlooked entirely.

  • Whether the sentencing judge erred in assessing the quantity of drugs involved in the offences
  • Whether, in light of that error, the sentence of four years imprisonment with a two-year non-parole period was manifestly excessive
  • How s 25A of the Drug Misuse and Trafficking Act 1985 applies to small-scale but ongoing street-level drug supply

Decision

Ground 1: Error on drug quantity

The Court accepted that drug quantity is a relevant sentencing consideration, but held that it is not the only one. For offences under s 25A, the magnitude of the operation or dealing is also relevant. The Court confirmed that the section is intended to provide a strong deterrent against ongoing involvement in the heroin trade, including for street-level dealers who supply in small amounts from a concealed stock.

Ground 2: Manifest excess

Although the sentencing judge's error on quantity was conceded, the Court identified significant counter-balancing errors in the appellant's favour. The judge had found, without evidential support, that the appellant had reached a stage where he could overcome his addiction and was performing well by not using drugs. Those findings were contradicted by the evidence and the pre-sentence reports.

More significantly, the judge had entirely overlooked the fact that the appellant was on parole at the time of the offending. The Court regarded this as a circumstance of considerable aggravation that should have been taken into account. The appellant had also broken off contact with Probation and Parole shortly before the offences, and the circumstances of the sales indicated he was not a casual or isolated offender.

Weighing the factual error on quantity against the sentencing judge's errors in the appellant's favour, the Court was not persuaded that any different sentence was warranted. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, drug quantity is a relevant but not determinative sentencing factor; the overall magnitude of the dealing and the legislative policy of deterrence must also be considered.
  • In dismissing the appeal, the Court of Criminal Appeal applied a counter-balancing analysis: where a sentencing judge makes a factual error favouring the offender (here, understating drug quantity to the offender's benefit, and making unsupported optimistic findings about rehabilitation), that may offset a separate error that disfavoured the offender.
  • Committing an offence while on parole is a circumstance of significant aggravation that a sentencing judge is required to address; the failure to do so here was treated as a material error, even though it ultimately did not change the outcome.
  • Section 25A applies to ongoing street-level dealers supplying small quantities from a larger stock, not only to large-scale or organised distributors; sentences across the range available should reflect the relative seriousness of different categories of offender.
  • An extensive criminal history including multiple prior supply convictions is a weighty factor against leniency, particularly where it demonstrates a continuing disregard for drug laws rather than an isolated lapse.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), s 94
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases
- Sirocic [2000] NSWCCA 447
- Smiroldo [2000] NSWCCA 120
- Vranic, NSWCCA, 7 May 1991
- Moffit (1990) 20 NSWLR 114