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Court of Criminal Appeal 19 October 2001

Regina v Boardman

[2001] NSWCCA 431

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE ONGOING SUPPLY OF DRUGS PARITY OF NON PAROLE PERIOD GIVEN TO CO OFFENDER

Citation: Regina v Boardman [2001] NSWCCA 431
Court: NSW Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Grove J, Howie J

Background

The applicant pleaded guilty in the District Court to supplying a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985. He and his de facto wife were sentenced together, having both sold drugs to undercover police officers on multiple occasions within a 30-day period. The applicant received three years and nine months imprisonment with a non-parole period of two years and ten months; his wife received three years with a non-parole period of only twelve months.

During sentencing, the District Court admitted transcript evidence from a listening device recording in which the applicant stated his intention to expand his drug operation once he obtained electronic scales. The sentencing judge found beyond reasonable doubt that both the applicant and his wife intended to expand their drug supply business.

The applicant sought leave to appeal against the severity of his sentence, raising three grounds: the finding that the supply was commercial in nature, parity between his non-parole period and his wife's, and the use of the future-intentions evidence to assess the criminality of the offence charged.

  • Whether the sentencing judge erred in finding that the applicant was engaged in commercially profitable drug supply, not merely supplying to fund his own habit
  • Whether principles of sentencing parity required the applicant's non-parole period to be aligned with his co-offender wife's non-parole period
  • Whether evidence of the applicant's intention to expand his drug operation was admissible, and if so, for what purposes it could legitimately be used at sentencing

Decision

On the commercial activity finding, the Court of Criminal Appeal upheld the sentencing judge's conclusion. Given that the applicant and his wife were running what amounted to a drug supply business, the court reasoned that the overwhelming inference from the evidence was that the enterprise generated income beyond merely funding their personal drug use. Howie J noted that where a person supplies drugs on an ongoing basis under s 25A, the onus falls on the offender to establish on the balance of probabilities that the supply was solely to finance personal drug use, not the prosecution to disprove it.

On parity, the Court found no error. The applicant's lengthy criminal record and poor rehabilitation prospects distinguished him from his wife, who had two dependent children and demonstrated better rehabilitation prospects. Accepting the parity argument would have required the court to find special circumstances where none existed, a result the Court rejected as inconsistent with authority, including Postiglione v The Queen.

The appeal succeeded on the third ground. The Court accepted that the listening device evidence was legitimately admissible to rebut any claim that the charged supply incidents were isolated, or that the applicant intended to cease offending. However, the sentencing judge had gone further and used the evidence to assess the criminality of the offence actually charged. Two passages from the sentencing remarks demonstrated this error. The Court found this impermissible use of the evidence was likely to have resulted in a higher sentence than was otherwise warranted, and proceeded to resentence the applicant.

Orders Made

  • Appeal allowed
  • Applicant resentenced

Key Takeaways

  • Evidence that an offender intended to expand drug supply operations is admissible at sentencing to rebut suggestions of isolated conduct or an intention to desist, but it cannot be used to aggravate the criminality of the specific offence charged.
  • A clear distinction exists between permissible and impermissible uses of future-intentions evidence at sentencing; using such evidence to inflate the assessed seriousness of the charged offence constitutes a sentencing error.
  • Where an offender is sentenced for ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985, the Court of Criminal Appeal confirmed that the offender bears the onus of proving on the balance of probabilities that supply was solely for the purpose of financing personal drug use, not for broader commercial gain.
  • Parity principles do not require identical non-parole periods for co-offenders where their individual circumstances, including criminal history and rehabilitation prospects, differ materially.
  • Finding that drug supply involved some commercial profit does not require proof of a formal business structure; supply that generates income beyond funding personal drug use and contributes to general family expenses is sufficient to constitute commercial activity.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of prohibited drugs)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295 (parity in sentencing)