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7
Court of Criminal Appeal 14 December 2001

R v Hofer

[2001] NSWCCA 544

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SUPPLY OF METHYLAMPHETAMINE POSSESSION OF CANNABIS DOUBLE JEOPARDY PRINCIPLE ERROR ON THE FACE OF THE RECORD

Citation: R v Hofer [2001] NSWCCA 544
Court: NSW Court of Criminal Appeal
Date: 14 December 2001
Judge(s): Wood CJ at CL, Sperling J

Background

The appellant was the proprietor of a service station in Cessnock who sold methylamphetamine to an undercover police officer on five occasions over approximately ten days in October 2000. The quantities ranged from small street-level deals of half a gram to larger sales of seven grams. When arrested in November 2000, police found cannabis at the premises, along with scales and plastic bags consistent with drug supply.

The appellant pleaded guilty at the first available opportunity. In sentencing proceedings, he acknowledged supplying drugs from the station for some time, explained that the business was financially unviable, and disclosed he had voluntarily ceased supply before his arrest at the insistence of his partner. He had also stopped using drugs himself since arrest.

The District Court sentenced him to five years imprisonment with a non-parole period of three years for ongoing supply of methylamphetamine under s 25A of the Drug Misuse and Trafficking Act 1985, taking into account a possession of cannabis charge on a Form 1. The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred in treating a prior conviction for drug supply as an aggravating feature of the current offence, potentially infringing the double jeopardy principle
  • Whether the sentence of five years imprisonment was manifestly excessive in all the circumstances

Decision

On the first ground, the Court found that the sentencing judge had expressed himself in a way that constituted error on the face of the record. A prior conviction cannot, absent specific legislative provision, be used as an aggravating feature of an offence for which the offender currently stands to be sentenced. Treating an earlier conviction as making the current offence "more serious" risks punishing the offender again for that earlier matter, offending the double jeopardy principle. Prior convictions remain relevant to questions such as whether the conduct was out of character, whether the offender displays a continued attitude of disobedience, and prospects of rehabilitation, but those are distinct from aggravation of the index offence itself.

On the question of manifest excess, the Court acknowledged the seriousness of ongoing supply of methylamphetamine, particularly given the twenty-year maximum penalty and the deliberate, commercial nature of the supply. Weighing against the appellant were his prior drug supply conviction, the fact that he was subject to a current good behaviour bond at the time of the offending, and the need to reflect the Form 1 cannabis possession matter in the overall sentence. The early guilty plea, voluntary cessation of supply before arrest, demonstrated contrition, and the fact that this would be the appellant's first experience of full-time custody were all mitigating factors.

The Court concluded the original sentence was excessive, but only to a limited degree. It reduced the head sentence from five years to four years and adjusted the non-parole period to two years and four months, with both terms commencing from the date of the appellant's arrest on 9 November 2000.

Orders Made

  • Leave to appeal granted
  • Sentence below quashed
  • New sentence of four years imprisonment, commencing 9 November 2000 and expiring 8 November 2004
  • Non-parole period of two years and four months, commencing 9 November 2000 and expiring 8 March 2003

Key Takeaways

  • A prior conviction cannot be used as an aggravating feature of an offence at sentencing unless legislation specifically provides for it. Treating prior offending as making the current conduct "more serious" risks infringing the double jeopardy principle.
  • Prior criminal history remains relevant at sentencing, but only for limited purposes: assessing whether the offending was out of character, gauging the offender's attitude toward compliance with the law, and evaluating prospects of rehabilitation.
  • Under the double jeopardy principle as applied in this context, an offender must not effectively be punished twice for the same earlier conduct through its use as an aggravating factor on a subsequent sentence.
  • In reducing the sentence, the Court of Criminal Appeal confirmed that voluntary cessation of offending before arrest, an early guilty plea, and genuine contrition are legitimate mitigating factors, even in serious commercial drug supply cases.
  • Judicial Commission sentencing statistics for comparable offences are a permissible reference point when assessing whether a sentence falls within the legitimate range of sentencing discretion.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Groat (2001) NSWCCA 452
- R v Ryan (2001) 75 ALJR 815
- Regina v De Simoni (1981) 147 CLR 383
- Regina v Smiroldo (2000) NSWCCA 120
- Regina v Barton (2001) NSWCCA 63
- Regina v Daridis (NSWCCA, 18 December 1986)
- Regina v McMahon (NSWCCA, 4 April 1996)
- Regina v Tran (1990) NSWCCA 109
- Regina v Bacon (2000) NSWCCA 549
- Regina v Bloomfield (NSWCCA, 15 July 1998)
- Regina v Carter (2000) NSWCCA 490
- Regina v Hayes (2001) NSWCCA 410
- Regina v Hoon and Pouoa (2000) NSWCCA 137
- Regina v Huang and Lin (2001) NSWCCA 76
- Regina v Khaled (2001) NSWCCA 169
- Regina v Nuth (2001) NSWCCA 318
- Regina v Tannous (NSWCCA, 18 June 1997)
- Regina v Thompson (2000) NSWCCA 362
- Regina v Tipler (2000) NSWCCA 382