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Court of Criminal Appeal 19 February 2001

R v MOUSSA

[2001] NSWCCA 28

Drugs

Citation: R v Moussa [2001] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 19 February 2001
Judge(s): Hulme J; Grove J

Background

The applicant was sentenced in the District Court by Price DCJ on 2 March 2000, following a guilty plea to a charge of supplying a prohibited drug (heroin). The sentence comprised minimum and additional terms of 12 months each, totalling two years imprisonment. A second, earlier supply offence was taken into account at sentencing.

The offending involved the applicant travelling from Murwillumbah to Cabramatta to purchase 27 grams of heroin at approximately 71 percent purity. He was arrested at Strathfield on his return journey. The sentencing judge accepted that the heroin was purchased for personal use by the applicant and his wife, both of whom were addicts, rather than for commercial dealing.

The applicant appeared in person before the Court of Criminal Appeal, seeking leave to appeal against the sentence on the grounds that it was excessive.

  • Whether the sentencing judge erred in failing to make a specific finding about whether the quantity of supply was "substantial"
  • Whether the total sentence of two years imprisonment was excessive given the purpose of the supply (personal use) and the quantity involved
  • Whether hardship to the applicant's family warranted a reduction in sentence or a non-custodial alternative
  • Whether the applicant's freedom from addiction at the time of the appeal was a relevant consideration on appeal

Decision

The Court reaffirmed the established principle that the Court of Criminal Appeal cannot interfere with a sentence imposed at first instance unless it is shown to fall outside the legitimate exercise of the sentencing judge's discretion or is otherwise affected by legal error. The applicant's post-sentence freedom from addiction was noted as potentially relevant to any re-sentencing, but not to whether the original sentence was infected by error.

On the question of family hardship, Hulme J applied the principle from R v Edwards that hardship to family members is a common consequence of imprisonment and is taken into account only in extreme or highly exceptional circumstances. The circumstances relied on by the applicant did not approach that threshold.

Regarding the quantity involved, the Court noted that the relevant legislation imposed a maximum of 15 years imprisonment for supply of between 5 grams and 250 grams. With 27 grams involved, the aggregate sentence of two years could not be regarded as excessive. The Court also cited R v Clarke for the proposition that non-custodial orders are appropriate only in exceptional circumstances where an offence involves the dissemination or intended dissemination of drugs to others.

The Court found no error in Price DCJ's sentencing approach. The sentencing judge had expressly acknowledged the applicant's drug dependency, his guilty plea, and the credit due for voluntarily disclosing the earlier offence to police. Leave to appeal was refused.

Orders Made

  • Application for leave to appeal refused.

Key Takeaways

  • A sentence of two years imprisonment for supplying 27 grams of heroin at 71 percent purity was held not to be excessive when considered against the statutory maximum of 15 years for supply of between 5 and 250 grams.
  • Family hardship arising from a custodial sentence is taken into account only in extreme or highly exceptional circumstances, and ordinary hardship to dependants does not meet that standard.
  • Post-sentence rehabilitation (such as freedom from addiction) may be relevant to any re-sentencing exercise but is not relevant to whether the original sentence was affected by error at the time it was imposed.
  • Non-custodial orders in drug supply cases are appropriate only in exceptional circumstances where the offence involves the dissemination or intended dissemination of drugs to others, following R v Clarke.
  • In dismissing the application, the Court of Criminal Appeal confirmed that the absence of an express finding on whether supply was "substantial" did not constitute a sentencing error where the quantity involved, measured against the legislative framework, clearly supported a custodial term.

Legislation and Cases Referenced

Cases:
- R v Edwards (unreported, NSW Court of Criminal Appeal, 17 December 1996)
- R v Clarke (unreported, NSW Court of Criminal Appeal, 15 March 1990)

Legislation:
- Relevant NSW drug supply legislation (specific Act not identified in the judgment text, but provisions referenced set maximum penalties of 15 years for supply of 5 to 250 grams and 10 years for supply of 1 to 5 grams)