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Court of Criminal Appeal 17 June 2002

REGINA v. HENNOCK

[2002] NSWCCA 229

Drugs
CRIMINAL LAW APPEAL SENTENCE ONGOING SUPPLY OF DRUGS MDMA YOUTH NATURE OF DEALINGS

Citation: [2002] NSWCCA 229
Court: New South Wales Court of Criminal Appeal
Date: 17 June 2002
Judge(s): Greg James J; Smart AJ

Background

The appellant was 19 years old when he committed the offences and had just turned 20 at sentencing. He pleaded guilty in the District Court at Gosford to a charge of supplying the prohibited drug MDMA (methylenedioxy methylamphetamine, commonly known as ecstasy) on an ongoing basis, contrary to section 25A(1) of the Drugs Misuse and Trafficking Act 1985. This offence carries a maximum penalty of 20 years imprisonment.

The supply occurred over a period from late March to late April 2001 on the Central Coast, with the appellant dealing through an intermediary who was transacting with an undercover police officer. Individual supplies ranged from 10 tablets to 200 tablets. The sentencing judge also took into account, on a Form 1, a further supply of MDMA, a small supply of cannabis to a schoolgirl, and possession of cannabis found at the appellant's premises.

The District Court imposed a total sentence of four years imprisonment, with a non-parole period of two years, commencing 22 November 2001. The sentencing judge found special circumstances based on the appellant's age, the need for supervised rehabilitation, and the fact that he would serve his entire sentence in protection.

  • Whether the sentencing judge erred by inferring a greater level of criminality than the evidence supported, contrary to the principles in The Queen v Olbrich (1999) 199 CLR 270.
  • Whether the sentencing judge erred in failing to adequately account for the role of police suggestion in inflating the scale of the largest transaction.
  • Whether the overall sentence of four years was manifestly excessive, having regard to the appellant's youth, first-time custody, time to be served on protection, and the objective circumstances of the offending.

Decision

The Court rejected the contention that the sentencing judge had improperly concluded the appellant was involved in multiple large-scale transactions. On a careful reading of her Honour's remarks, the reference to the appellant being "willing and able" to obtain a larger supply was directed specifically at the one transaction involving 200 tablets, not any other unproven dealing. No error of the kind identified in Olbrich was established.

The Court also dismissed the argument that police involvement in initiating the 200-tablet transaction should have substantially reduced the appellant's culpability. The sentencing judge's observations about the appellant's willingness went to the character of his engagement in the broader ongoing supply, not merely the mechanics of that particular transaction.

The Court declined to accept the submission that the sentence could be reverse-engineered to reveal a foundational error. Greg James J observed that such an approach is frequently attempted but does not reliably expose error in a sentencing exercise. The focus under section 6(3) of the Criminal Appeal Act 1912 is on the correctness of the final sentence, not on reconstructed intermediate steps.

While the Court expressed genuine hope for the appellant's rehabilitation, it held that denunciation of the offending and fidelity to a lawfully imposed sentence could not be sacrificed in pursuit of that outcome. No error and no manifest excess were established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's assessment of the appellant's level of criminality, where her Honour's remarks, properly read, made no finding of additional large-scale transactions beyond those proved.
  • Under the principles in Olbrich, a sentencing court must not make adverse factual findings against a defendant beyond what the evidence warrants; here, however, the Court of Criminal Appeal found no such departure occurred.
  • A sentence cannot be challenged by arithmetically reversing from the end result to posit an inflated starting point: the Court of Criminal Appeal confirmed that its function under section 6(3) of the Criminal Appeal Act 1912 is to evaluate the final sentence for error, not to interrogate intermediate working.
  • Finding special circumstances on account of youth, the need for rehabilitation, and the hardship of serving an entire custodial term in protection does not, of itself, generate an appealable error or produce a manifestly excessive outcome.
  • Upholding the sentence, the Court acknowledged the appellant's prospects for rehabilitation but affirmed that those prospects do not override the sentencing principles of denunciation and the exercise of judicial discretion within lawful bounds.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- The Queen v Olbrich (1999) 199 CLR 270