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Court of Criminal Appeal 10 July 2001

R v. Patek

[2001] NSWCCA 315

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE NO ERROR OF PRINCIPLE SHOWN. ND

Citation: R v Patek [2001] NSWCCA 315
Court: New South Wales Court of Criminal Appeal
Date: 10 July 2001
Judge(s): Hodgson JA, Matthews AJA, Studdert J

Background

The respondent pleaded guilty in the District Court to a charge under section 25A of the Drug Misuse and Trafficking Act 1985, which targets persons engaged in a systematic practice or business of supplying prohibited drugs for financial reward. The charge arose from an undercover police operation in which an operative made four separate purchases of heroin from the respondent between March and April 2000, each transaction involving small quantities (ranging from 0.32 to 0.42 grams) exchanged for $140 in cash.

Recorded conversations from the operation revealed the respondent discussing larger-scale drug transactions and pricing, including references to buying by the pound and ounce. District Court Judge Sorby sentenced the respondent to 27 months imprisonment with a non-parole period of 20 months, taking into account the respondent's extensive criminal history, long-standing heroin addiction, participation in a methadone programme, and a 15 percent discount for his guilty plea.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal, contending the sentence was manifestly inadequate.

  • Whether the sentence of 27 months imprisonment with a 20-month non-parole period was manifestly inadequate for an offence of systematic heroin supply under section 25A of the Drug Misuse and Trafficking Act 1985
  • Whether the primary judge failed to give adequate weight to specific and general deterrence
  • Whether the adjustment of the head sentence from 30 months to 27 months between the initial and supplementary judgments indicated an error warranting appellate intervention
  • Whether the principles governing Crown appeals (requiring demonstrated error of principle or gross departure from the norm) were satisfied

Decision

The Court of Criminal Appeal acknowledged the Crown's submissions had some force. Hodgson JA accepted that the sentence was a "light one in the circumstances," particularly when compared with the sentence in Regina v Smiroldo, where the Court of Criminal Appeal had indicated that a sentence of four and a half years was not excessive and that a significantly longer sentence was arguably warranted.

However, acknowledging that a sentence is lenient is not the same as identifying an error of principle. The Court was not persuaded that the sentencing judge had made a demonstrable error of principle or that the sentence represented such a gross departure from the accepted norm as to justify allowing a Crown appeal. The high threshold for Crown appeals, as established in cases such as Griffiths v Regina, was not met.

The respondent's counsel had also pointed to meaningful factual distinctions from Smiroldo: the drug quantities here were smaller, the undercover officer had specifically arranged each transaction, and the respondent was in genuinely desperate personal circumstances, funding his own addiction on a disability pension rather than running a profitable drug business. The Court found these distinctions relevant to the overall assessment.

On the adjustment of the head sentence, the Court found the correction from 30 to 27 months was not indicative of any error justifying the upholding of a Crown appeal. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Crown appeals against sentence require more than a finding that the sentence was lenient; they require demonstrated error of principle or a gross departure from the sentencing norm.
  • A sentence acknowledged to be "light" does not automatically meet the threshold for intervention on a Crown appeal under the principles established in Griffiths v Regina.
  • Under section 25A of the Drug Misuse and Trafficking Act 1985, recorded conversations disclosing larger dealing patterns provide context for the transactions charged but, following R v Di Simoni, there are constraints on how far uncharged conduct can increase the sentence actually imposed.
  • No error was established from the primary judge's correction of the head sentence between an initial reasons judgment and a supplementary judgment.
  • Factual distinctions between cases cited as comparators, including differences in drug quantities, transaction arrangements, and the offender's personal circumstances, can carry significant weight in resisting a Crown appeal based on comparison with a single prior sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Criminal Appeal Act 1912 (NSW), s 50
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Regina v Smiroldo [2000] NSWCCA 120
- R v Di Simoni (1981) 147 CLR 383 (High Court)
- Griffiths v Regina (1977) 137 CLR 293 (High Court)
- Regina v Hoon and Pouoa [2000] NSWCCA (19 April 2000)