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Court of Criminal Appeal 24 June 2002

R v Jordan

[2002] NSWCCA 228

Drugs
CRIMINAL LAW: SENTENCE CUMULATIVE SENTENCES WHETHER TOTAL SENTENCE EXCESSIVE.

Citation: R v Jordan [2002] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 24 June 2002
Judge(s): Hidden J, Buddin J

Background

The applicant, a barman at a Kings Cross café, pleaded guilty to two charges under the Drug Misuse and Trafficking Act 1985: ongoing supply of cocaine (arising from five separate sales to undercover police officers between January and February 2000) and a further charge of supplying cocaine (arising from approximately 62 grams of cocaine found at his flat when police searched it upon his arrest in March 2000). The sentencing judge in the District Court found that both offences arose from the same course of criminal activity and characterised the applicant as operating a small-scale drug supply business.

The sentencing judge imposed a fixed term of three years on the supply charge, then a fully accumulated sentence of three and a half years (with a 12-month non-parole period) on the ongoing supply charge. That produced an effective sentence of six and a half years with a total non-parole period of four years.

The applicant was 51 at the time of the offences. He had a prior conviction for supplying a commercial quantity of cocaine, suffered from paranoid schizophrenia aggravated by cocaine use, and had developed both a drug dependence and a gambling problem. The sentencing judge found special circumstances and gave credit for his early guilty pleas.

  • Whether the sentencing judge erred by fully accumulating the two sentences rather than ordering partial accumulation or concurrent sentences.
  • Whether the resulting total effective sentence of six and a half years was manifestly excessive given the nature and circumstances of the offending.

Decision

The Court of Criminal Appeal accepted the applicant's submission that full accumulation of the sentences was an error. While it was open to the sentencing judge to accumulate the sentences (given the approximately six-week gap between the last of the ongoing supply transactions and the arrest that gave rise to the second charge), the judge had himself characterised both offences as products of the same course of criminal activity. Full accumulation in those circumstances produced a total sentence that exceeded what was appropriate to reflect the overall criminality involved.

The Court reviewed comparable sentencing decisions involving ongoing drug supply. Those cases demonstrated a range of effective sentences broadly between 14 months and five years, with most clustering around three years. An effective sentence of six and a half years sat clearly outside that range. The Court acknowledged, however, that a sentence at or slightly above the top of the range was warranted given the quantity of cocaine found at the applicant's premises, the time elapsed between the two offences, and his prior conviction for a serious drug offence.

The Court found that each sentence, considered in isolation, was unimpeachable. The problem lay in the full accumulation producing a combined sentence disproportionate to the applicant's overall criminality. The Court resolved this by directing that the sentence on the first charge commence one year earlier than ordered below, producing an effective sentence of five and a half years with a non-parole period of three years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Fixed term of three years on the supply charge confirmed, commencing 14 March 2000.
  • Sentence of three and a half years (non-parole period of 12 months) on the ongoing supply charge confirmed, but varied to commence on 14 March 2002 (rather than 14 March 2003 as originally ordered).
  • The applicant became eligible for release on parole on 14 March 2003.

Key Takeaways

  • Full accumulation of sentences for offences arising from the same course of criminal activity can produce a total sentence that fails the totality principle, even where each individual sentence is unimpeachable.
  • The Court of Criminal Appeal confirmed that the ongoing supply offence under s 25A of the Drug Misuse and Trafficking Act 1985 is directed at repetition, system, and organisation, and the objective criminality of any charge under that section should be assessed by reference to those features rather than simply the individual instances of supply.
  • Where a sentencing court treats two drug supply charges as arising from the same course of criminal activity, that characterisation bears directly on the appropriate degree of accumulation when structuring cumulative sentences.
  • Partial accumulation, rather than full accumulation or full concurrency, was identified in this case as the appropriate structural response where charges are related but not entirely contemporaneous.
  • Comparable sentencing decisions indicated an effective sentence range of approximately 14 months to five years for ongoing drug supply offences, with most sentences around three years; sentences at or above the top of the range required specific justification by reference to aggravating features.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Probation and Parole Act 1983 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Smiroldo (2000) 112 A Crim R 47
- R v Hoon and Pouoa [2000] NSWCCA 137
- R v Plane (CCA, unreported, 10 April 1990)
- R v Scevola [2001] NSWCCA 430
- R v Thompson [2000] NSWCCA 362
- R v Tipler [2000] NSWCCA 382