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Court of Criminal Appeal 8 May 2002

REGINA v. STEWART

[2002] NSWCCA 165

Drugs
CRIMINAL LAW APPEAL DRUG TRAFFICKING NECESSITY FOR CUSTODIAL SENTENCE.

Citation: [2002] NSWCCA 165
Court: New South Wales Court of Criminal Appeal
Date: 8 May 2002
Judge(s): Greg James J; Carruthers AJ

Background

The appellant was convicted by jury in the District Court of knowingly taking part in the supply of approximately 155 grams of methylamphetamine, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985. The transaction involved a co-offender, Butcher, who sold the drugs to an undercover police officer in a Port Macquarie car park. The Crown established the appellant's involvement through evidence that he provided the drugs, provided the premises from which they were uplifted, and stood ready to receive the proceeds.

The trial judge found the appellant played a substantial and intimate role in the single transaction, including what appeared to be a controlling influence over pricing and whether larger transactions could proceed. No evidence connected the appellant to the co-offender's other drug transactions with the undercover officer. The District Court sentenced the appellant to three years' imprisonment with a non-parole period of two years, commencing 6 December 2001.

On appeal, the appellant appeared through counsel (who had received a late brief) and argued the sentence was manifestly excessive. No written submissions had been filed prior to the hearing, and counsel proceeded by oral argument on that single ground.

  • Whether the sentence of three years' imprisonment with a two-year non-parole period was manifestly excessive having regard to the nature and circumstances of the offence
  • Whether the trial judge erred by failing to treat the offence as isolated or aberrant, given the appellant had no proven involvement in the co-offender's other transactions
  • Whether the trial judge improperly took into account the co-offender's broader course of offending when assessing the appellant's culpability

Decision

The Court of Criminal Appeal applied the principles from House v The King (1936) 55 CLR 499, confirming that an appellate court may only intervene in a sentencing discretion where the primary judge acted on a wrong principle, was guided by extraneous or irrelevant matters, mistook the facts, or failed to consider a material matter. Alternatively, the court may intervene where the outcome is so unreasonable or unjust as to imply an undisclosed error.

On the first ground, the Court found no basis to conclude the sentence was unreasonable or unjust in the relevant sense. The trial judge had carefully balanced the substantial objective criminality of the offence against favourable subjective factors, including the appellant's lack of significant prior criminal history, his family commitment, his involvement in charitable and community activities, and his standing as an established local businessman.

On the second ground, the Court held the trial judge had not erred. His Honour assessed the criminality of the single charged offence while expressly declining to aggravate that criminality by reference to the co-offender's other transactions. The Court confirmed the trial judge was not required to characterise the offence as isolated or aberrant. That approach was described as not merely unobjectionable but "patently correct."

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An appellate court cannot interfere with a sentencing discretion simply because it might have imposed a different sentence; error of the kind identified in House v The King (1936) 55 CLR 499 must be demonstrated, or the sentence must be so unreasonable or unjust as to imply such an error.
  • Where a co-offender has committed multiple drug transactions and the offender is implicated in only one, the sentencing court is not required to find the single offence was isolated or aberrant before imposing a custodial term.
  • A sentencing court may properly assess an offender's culpability for a single transaction by reference to the role played within that transaction, including evidence of a controlling influence over pricing and the scale of supply, without importing the co-offender's broader offending history as an aggravating factor.
  • Favourable subjective circumstances, including community involvement, family commitment, and absence of significant prior convictions, were weighed against objective criminality but did not displace the need for a custodial sentence in a case of substantial involvement in methylamphetamine supply.
  • Under s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal's power to intervene is limited to cases where some other sentence was both warranted in law and should have been passed.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Appeal Act (NSW), s 6(3)

Cases
- House v The King (1936) 55 CLR 499
- Khouzame [2000] NSWCCA 505