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Court of Criminal Appeal 19 October 2001

Regina v Scevola

[2001] NSWCCA 430

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE CONTINUING SUPPLY OF DRUGS SERIOUS POSSESSION ON FORM 1 SENTENCE NOT EXCESSIVE NO SPECIAL MATTER OF PRINCIPLE

Citation: Regina v Scevola [2001] NSWCCA 430
Court: New South Wales Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Grove J; Howie J

Background

The applicant was sentenced in the Sydney District Court on 4 February 2000 following guilty pleas to charges of ongoing cocaine supply under s 25A of the Drug Misuse and Trafficking Act, and a separate possession charge under s 25 of the same Act. The offences arose from a police controlled operation in early 1999, during which an undercover operative purchased cocaine capsules from the applicant on multiple occasions. A later search of the applicant's vehicle located 39 capsules, and a search of his residence uncovered 6.09 grams of cocaine (more than twice the traffickable quantity) along with $400 in cash.

The applicant had been purchasing capsules for $40 each and reselling them for $60, earning a $20 profit per sale. The District Court imposed a minimum term of two years and nine months with an additional term of one year and six months on the primary charge, and 12 months concurrent on the possession charge.

The applicant sought an extension of time to apply for leave to appeal against sentence, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing judge erred by applying sentencing discounts only to the minimum term rather than to the overall sentence
  • Whether the sentence was manifestly excessive having regard to comparable sentences for offences under s 25A of the Drug Misuse and Trafficking Act
  • Whether the sentencing judge gave sufficient credit for the applicant's early guilty plea

Decision

On the first issue, the applicant argued that his Honour's remarks suggested a discount had been applied only to the minimum term, which would be an error in principle. The Court of Criminal Appeal accepted that such an approach would indeed be erroneous, but agreed with the Crown's analysis that the judge's actual sentencing calculation did not reflect this error. The total sentence of four years and three months was inconsistent with a minimum term of four years before discount and only three months additional term, particularly given a finding of special circumstances. The Court found no error had in fact occurred.

On manifest excess, the Court noted that the available statistics on s 25A offences were limited and, more significantly, that they did not account for the separate and serious possession charge involving 6.09 grams of cocaine. The Court was not persuaded the overall sentence was excessive when the full picture of the offending was considered.

On the guilty plea credit, the Court noted that the sentencing occurred before the Court of Criminal Appeal's decision in Regina v Thomson, but observed that the common law already required a sentencing judge to acknowledge a guilty plea. His Honour had expressly done so. The Court found no indication that insufficient credit had been given, and regarded the sentence as a sound exercise of the sentencing discretion.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Applying a sentencing discount only to a minimum term, without adjusting the overall sentence, would constitute an error in principle, but the Court of Criminal Appeal will look beyond isolated remarks to the sentencing calculation as a whole before concluding that such an error occurred.
  • In assessing manifest excess for a s 25A Drug Misuse and Trafficking Act offence, statistics on that provision alone are insufficient where the offender was also sentenced for a separate serious drug possession charge.
  • No error was established in the credit afforded for the guilty plea, as the sentencing judge had expressly acknowledged it and the quantification of the sentence reflected a sound overall exercise of discretion.
  • Even prior to Regina v Thomson, the common law required sentencing courts to acknowledge and reflect a guilty plea, and the absence of explicit quantification of that discount does not in itself demonstrate the credit was inadequate.
  • The Court granted an extension of time despite the application being brought late, proceeding to deal with the merits in the interests of justice.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25 and s 25A
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
- Justices Act (NSW), s 51A
- Sentencing Act 1989 (NSW)

Cases:
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Gallagher (1991) 23 NSWLR 220
- Regina v Ellis (1986) 6 NSWLR 603
- Regina v Thomson (2000) 49 NSWLR 383