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Court of Criminal Appeal 10 May 2002

Regina v Bruppacher

[2002] NSWCCA 182

Drugs
CRIMINAL LAW DRUG MISUSE AND TRAFFICKING ACT S 25A SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: Regina v Bruppacher [2002] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 10 May 2002
Judge(s): Newman AJ; Carruthers AJ

Background

The appellant was sentenced in the District Court at Penrith following a guilty plea to supplying heroin on an ongoing basis, contrary to section 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offence arose from three separate acts of supply occurring within a 30-day period: one transaction on 3 May 2000 and two on 11 May 2000, all involving small quantities of heroin sold for cash in the Blue Mountains area.

Evidence from telephone surveillance conducted in April and May 2000 revealed substantial broader dealing activity. Of 887 intercepted calls over a short period, 777 were assessed as drug-related, averaging approximately 35 calls per day. A search of the appellant's premises on 11 May 2000 uncovered over $1,000 in cash, a small quantity of heroin, cannabis, and drug-related equipment.

The trial judge sentenced the appellant to five years and six months imprisonment, with a non-parole period of three years and three months. The appellant, appearing in person, sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of five years and six months imposed under section 25A of the Drug Misuse and Trafficking Act 1985 was manifestly excessive
  • How sentencing courts should approach section 25A offences, given the provision's relatively recent introduction into NSW law
  • Whether the trial judge properly considered all relevant subjective factors, including the appellant's own drug use, the psychological report tendered, and his personal circumstances

Decision

The Court of Criminal Appeal granted leave to appeal given the seriousness of the matter to the appellant and the novelty of section 25A as a sentencing provision. However, the Court dismissed the appeal, finding no error in the trial judge's approach.

Newman AJ found that the trial judge had correctly assessed both the objective and subjective features of the case. The judge had taken into account the appellant's prior criminal history (which included prior drug supply convictions and custodial sentences), his personal circumstances including family matters involving DOCS, a psychological report, and his own significant heroin use. The argument that the psychological report had been prepared for a different matter was noted, but the Court found the trial judge had applied it in a manner favourable to the appellant.

On the objective gravity of the offence, Newman AJ observed that section 25A targets persons engaged in a practice or business of supplying prohibited drugs, and that the telephone surveillance evidence amply demonstrated the scale of the appellant's operation beyond the three specific supply incidents that constituted the charge. Crucially, the Court noted that the sentence was not merely within range but could properly be described as sitting at the lower end of the scale and as very lenient, given the circumstances.

Regarding the use of criminal statistics in sentencing for section 25A offences, Newman AJ cautioned that statistics drawn from earlier, less serious supply offences were not appropriate comparators. The maximum penalty of 20 years imprisonment signals the legislature's view of the seriousness of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Section 25A of the Drug Misuse and Trafficking Act 1985 targets persons engaged in a practice or business of supplying prohibited drugs, and sentencing courts are entitled to consider the full magnitude of the operation, including conduct beyond the specific transactions founding the charge, provided that conduct is proved to the applicable standard.
  • In dismissing the appeal, the Court of Criminal Appeal characterised the five-and-a-half year sentence as sitting at the lower end of the range and as very lenient, given the objective seriousness of the offending and the appellant's criminal history.
  • A sentencing court considering section 25A must assess the overall scale of the operation. Evidence of telephone surveillance showing hundreds of drug-related calls over a short period was relevant to, and properly considered in, assessing that scale.
  • Statistics derived from earlier drug supply offences that would not attract lengthy sentences are not reliable guides for sentencing under section 25A, which carries a maximum of 20 years imprisonment and represents a qualitatively different category of offence.
  • No error is established merely because a defendant disputes whether particular subjective material (such as a psychological report prepared for other proceedings) was properly before the court, where the sentencing judge demonstrably considered that material in a manner favourable to the defendant.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- R v Smiroldo (2000) 112 A Crim R 47
- R v Di Simone (1977) 137 CLR 383
- The Queen v Allbrick (1984) 93 ALR 1550
- R v Patek (unreported, NSWCCA, 10 July 2001)