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Court of Criminal Appeal 17 October 2001

Regina v Groat

[2001] NSWCCA 452

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE PRIOR CONVICTIONS OF OFFENDER APPELLANT RESENTENCED

Citation: Regina v Groat [2001] NSWCCA 452
Court: New South Wales Court of Criminal Appeal
Date: 17 October 2001
Judge(s): Wood CJ at CL; Grove J

Background

The appellant pleaded guilty in the Cowra District Court to three counts of supplying methylamphetamine. The first two counts arose from controlled transactions with an undercover police officer on 30 May, involving 2.83 grams and 3.2 grams of the drug respectively. The third count arose from a search warrant executed on 7 June, which uncovered a further 30.52 grams at the appellant's home.

The District Court sentenced the appellant to three years' imprisonment on each count, to be served concurrently, with a non-parole period of two years. The appellant sought leave to appeal against the severity of that sentence on three grounds.

  • Whether the sentencing judge erred by failing to give separate credit for contrition, distinct from the utilitarian value of a guilty plea
  • Whether the total sentence was manifestly excessive in the circumstances
  • Whether the sentencing judge erred in treating a prior drug conviction as an aggravating feature of the instant offending

Decision

The Court rejected the first two grounds. On contrition, while the sentencing judge made no express reference to it as a separate element, the Court was not persuaded that any error was evident in the overall sentencing approach. On manifest excess, the Court took a firm view that supplying methylamphetamine for commercial gain, even in the quantities involved, remains a serious matter, and found no error in the sentencing judge's assessment of objective seriousness.

The third ground succeeded. The sentencing judge had expressly described the appellant's prior drug conviction as "an aggravating feature." The Crown properly conceded that this was an error of principle. As a matter of law, prior convictions cannot be used to aggravate the seriousness of the instant offence. They may properly deprive an offender of leniency that might otherwise have been extended, but they do not make the current conduct more serious.

The Court accepted that the sentencing judge's words were plain in their meaning and could not be read, as the Crown invited, as a reference to the withholding of leniency. Because the Court could not know what effect that error had on the sentence ultimately imposed, resentencing was appropriate.

On resentencing, the Court declined to place any weight on the appellant's claim, raised for the first time on appeal, that he had been a recreational drug user. His wife had given evidence at first instance that he was not a user, and the appellant had permitted that to stand uncorrected before the District Court. The Court also expressed scepticism about the sincerity of his later expressed contrition.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • On each count: imprisonment for two years and six months, commencing 7 June 2000, each sentence to be served concurrently
  • Non-parole period of 18 months, commencing 7 June 2000, expiring 6 December 2001
  • Appellant to be released to parole on 6 December 2001

Key Takeaways

  • A prior criminal record cannot, as a matter of sentencing principle, be used to aggravate the seriousness of the instant offence. Its proper role is to disentitle an offender from leniency that might otherwise be available.
  • Where a sentencing judge expressly characterises prior convictions as an "aggravating feature," that constitutes a legal error, even if the Crown argues the remark can be read differently in context.
  • An error of this kind in the sentencing remarks will ordinarily warrant the appellate court's intervention and resentencing, because the effect of the error on the original sentence cannot be known.
  • The Court of Criminal Appeal confirmed that the strength of the Crown's case does not affect the weight to be given to the utilitarian value component of a guilty plea discount, consistent with R v Thomson (2000) 49 NSWLR 383.
  • Assertions raised for the first time on appeal that contradict evidence given without correction at first instance will carry little, if any, weight before the Court of Criminal Appeal.

Legislation and Cases Referenced

Cases:
- R v Thomson (2000) 49 NSWLR 383

Legislation:
- Criminal Appeal Act (NSW), s 6(3)