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Court of Criminal Appeal 28 March 2002

Regina v Radford

[2002] NSWCCA 122

Drugs
SENTENCE SUPPLYING HEROIN ON AN ONGOING BASIS RELIANCE ON HEARSAY MATERIAL IN REPORTS IMPORTANCE OF QUALITY EVIDENCE SENTENCES NOT EXCESSIVE

Citation: Regina v Radford [2002] NSWCCA 122
Court: Court of Criminal Appeal, New South Wales
Date: 28 March 2002
Judge(s): Smart AJ; Studdert J

Background

The appellant was convicted after a three-day jury trial in the District Court of supplying heroin on an ongoing basis, contrary to section 25A of the Drug Misuse and Trafficking Act 1985, along with two concurrent counts of knowingly taking part in the supply of a prohibited drug. The charges arose from an undercover police operation conducted over several days in December 1999, during which an operative made multiple purchases of heroin from the appellant's home in Tighes Hill.

The District Court found that the appellant had been running a retail heroin business from his home, supplying small quantities to anyone who sought them. He was sentenced to six years imprisonment with a non-parole period of four years and six months on the ongoing supply count, with concurrent fixed terms of 18 months on each of the other two counts. The offences were committed while the appellant was on a recognisance for an earlier unrelated offence.

The appellant sought leave to appeal against sentence on the ground that the sentences were excessive. He relied principally on the sentence for the ongoing supply offence, which carries a maximum penalty of 20 years imprisonment.

  • Whether the sentence of six years imprisonment for ongoing heroin supply was outside the permissible range, having regard to the objective seriousness of the offending and the appellant's subjective circumstances.
  • Whether the sentencing judge erred in the treatment of reports from a forensic psychiatrist and a social worker, given that key factual material in those reports was based on hearsay and was not supported by direct evidence from the appellant or other witnesses.
  • Whether statistical sentencing data from comparable cases indicated that the sentence imposed was excessive.

Decision

The Court examined the reports tendered on behalf of the appellant at the sentence hearing, prepared by a forensic psychiatrist (Dr Clark) and a social worker (Ms Kusch). Smart AJ found that both reports relied heavily on what the appellant had told the authors, rather than on independently verified or sworn evidence. The appellant did not give evidence at the sentencing hearing, and many of the asserted facts, including claims about his drug dependence, mental state, and background, were not established by admissible primary evidence.

Smart AJ emphasised the importance of quality evidence at sentence hearings. Where a practitioner or report-writer relies on statements made by the offender without independent corroboration or the offender's own sworn testimony, the sentencing court is left with hearsay material of limited weight. The Court observed that this significantly diminished the weight attributable to the appellant's claimed subjective features.

Turning to the statistical comparison, the Court reviewed sentencing data for comparable ongoing supply offences. While most sentences in the sample were lower, the Court noted that those cases involved guilty pleas (which typically attract a discount of roughly 10 to 20 per cent) and often involved younger offenders with more compelling subjective circumstances. The appellant had pleaded not guilty and offered no such comparable mitigating factors.

The Court concluded that no error had been established. The combination of features present in this case, including operation of a sustained retail heroin business, a very poor criminal record spanning decades, the commission of offences while on a recognisance, the appellant's age and maturity, and the absence of any guilty plea discount, distinguished it from the comparison cases and placed the sentence within the permissible range.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence of six years imprisonment with a non-parole period of four years and six months for ongoing heroin supply under s 25A of the Drug Misuse and Trafficking Act 1985 was held to fall within the permissible range where the offending involved a sustained retail business, a serious criminal history, and no guilty plea.
  • Hearsay material in psychiatric and social work reports carries reduced weight at a sentence hearing, particularly where the offender does not give evidence and the prime facts relied upon are drawn solely from self-reporting by the offender.
  • Statistical comparisons with other sentences for the same offence require careful analysis: where the comparison cases involved guilty pleas and strong subjective features, they may not reliably establish that a higher sentence for a contested matter is outside the permissible range.
  • No error is established merely because a sentence sits in the upper range of comparable cases, provided the combination of objective and subjective factors supports that result.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that courts should insist on evidence of adequate quality at sentence hearings, rather than accepting unverified assertions in expert reports as a substitute for sworn testimony.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1) (ongoing supply of prohibited drug)

Cases Referenced (from the Schedule to the judgment):
- R v Carter [2000] NSWCCA 490
- R v Tipler [2000] NSWCCA 382
- R v Scevola [2000] NSWCCA 440
- R v Boardman [2001] NSWCCA 431
- R v Savuth Nuth [2001] NSWCCA 318
- R v George Patek [2001] NSWCCA 315
- R v Khaled [2001] NSWCCA 169
- R v Kane Bacon [2000] NSWCCA 549