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Court of Criminal Appeal 2 August 2001

Regina v Van-Oostveen

[2001] NSWCCA 288

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE SUPPLYING A PROHIBITED DRUG PLEA OF GUILTY UTILITARIAN VALUE

Citation: Regina v Van-Oostveen [2001] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 2001
Judge(s): Simpson J, Sperling J

Background

The applicant pleaded guilty in the District Court to supplying a prohibited drug (heroin) contrary to the Drug Misuse and Trafficking Act 1985. Police had stopped a vehicle in which she was a passenger and, upon searching her, found approximately 74.9 grams of heroin concealed in her underwear, along with around $500 in cash. The quantity involved engaged the statutory deeming provision under which possession of more than the trafficable quantity is taken to be possession for supply.

The applicant maintained a not-guilty plea until the very day set down for trial, when she entered a guilty plea. At sentencing, she gave evidence that the heroin was primarily for her own use as a long-term addict, though she acknowledged she would likely have shared or sold some to her brother and friends. The sentencing judge (Nield DCJ in the District Court) found that the possession was substantially for a commercial purpose and sentenced her to five years' imprisonment with a non-parole period of two and a half years.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was manifestly excessive and that the sentencing judge's factual finding of commercial supply was not open on the evidence.

  • Whether the sentencing judge's finding that the heroin was held substantially for a commercial purpose was open on the evidence presented at sentencing
  • Whether the sentence of five years with a two-and-a-half-year non-parole period was manifestly excessive
  • What weight should be given to the utilitarian value of the guilty plea, given it was entered on the day of trial
  • Whether the sentencing judge was correct to find that the plea did not reflect genuine contrition

Decision

The Court found that the sentencing judge's central finding, that the applicant possessed the heroin substantially for commercial supply, was not supported by the evidence. The applicant had given evidence that her primary purpose was personal use, with only an acknowledgment that she would have shared or sold some to her brother and friends if asked. That evidence did not support the more serious characterisation adopted by the sentencing judge, and this factual error materially aggravated the sentence. Because the erroneous finding had vitiated the sentence, the Court was required to re-sentence the applicant.

On the question of the plea's utilitarian value, the Court applied the principles from R v Thomson and Houlton, which set a discount range of 10 to 25 percent. Because the plea was entered at the last moment and the trial avoided would have been short and uncomplicated, the applicant was entitled to only the minimum discount of approximately 10 percent. The Court found no basis to disturb the sentencing judge's conclusion on that point.

The Court also upheld the finding that the plea did not reflect genuine contrition. The sentencing judge had expressly found that the plea was entered in recognition of the strength of the Crown case and the near-inevitability of conviction, not out of remorse. That finding was held to be well open to the sentencing judge on the evidence.

On re-sentencing, the Court adopted the sentencing judge's finding that special circumstances existed justifying a non-parole period of less than three-quarters of the total sentence. A 10 percent reduction was applied for the utilitarian value of the plea.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; original sentence quashed
  • In substitution, the applicant was sentenced to four years' imprisonment with a non-parole period of two years, commencing 1 October 1999

Key Takeaways

  • A sentencing court's factual finding as to the purpose of drug possession must be open on the evidence; where a finding of commercial supply is not supported by the evidence led at sentence, it constitutes an error that vitiates the sentence and requires the appellate court to re-sentence.
  • Under the framework established in R v Thomson and Houlton, the utilitarian discount for a guilty plea ranges from 10 to 25 percent; a plea entered on the day of trial in a matter that would have been short and simple attracts only the minimum discount of around 10 percent.
  • A sentencing judge's finding that a guilty plea did not reflect contrition, where the evidence supports the conclusion that the plea was a pragmatic response to a strong Crown case, is a factual finding available to the sentencing judge and will not readily be disturbed on appeal.
  • Special circumstances justifying a non-parole period of less than three-quarters of the total sentence can be found and carried forward on re-sentencing by an appellate court.
  • Possession of heroin significantly exceeding the trafficable quantity engages the statutory deeming provision under the Drug Misuse and Trafficking Act 1985, but the extent of intended supply versus personal use remains a factual question relevant to objective seriousness at sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 29
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Thomson and Houlton [2000] 49 NSWLR 383