AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 10 September 2002

R v Smith

[2002] NSWCCA 378

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY SUPPLY OF PROHIBITED DRUG METHYLAMPHETAMINE CANNABIS LEAF

Citation: R v Smith [2002] NSWCCA 378
Court: NSW Court of Criminal Appeal
Date: 10 September 2002
Judge(s): Wood CJ at CL; Howie J

Background

The applicant pleaded guilty in the District Court at Gosford to two counts: supplying methylamphetamine on an ongoing basis (under s 25A(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 20 years imprisonment), and supplying cannabis leaf (under s 25(1) of the same Act, carrying a maximum of 10 years). The Crown case relied on intercepted telephone calls spanning approximately two weeks in March and April 2001, which recorded the applicant agreeing to supply methylamphetamine and cannabis leaf across twelve separate transactions. A subsequent search of his home uncovered over 1,300 grams of cannabis leaf, more than 124 grams of methylamphetamine, scales, unused resealable plastic bags, and $1,030 in cash.

English DCJ sentenced the applicant to four years imprisonment with a three-year non-parole period for the first count (with a related goods-in-custody matter dealt with on a Form 1), and a concurrent fixed term of three years for the second count. A 20 percent discount was expressly applied for the guilty pleas. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge gave undue weight to the quantity of drugs and drug-related items found at the applicant's premises, given those quantities were not the subject of the charges
  • Whether insufficient weight was given to the absence of evidence of actual, completed supply (as opposed to agreed supply)
  • Whether it was an error to place the applicant at the upper end of the scale for middlemen, absent sufficient evidentiary basis
  • Whether insufficient weight was given to the type of drug involved
  • Whether the sentencing judge misdirected herself in treating the applicant's prior record in a way that implied additional punishment for leniency shown in the past
  • Whether the sentencing judge treated the applicant's good character evidence as adverse rather than mitigating
  • Whether special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 should have been found, warranting a longer parole period
  • Whether the overall sentence was excessive by reference to Judicial Commission sentencing statistics and comparable appellate decisions

Decision

On the objective criminality grounds, the Court found no error. The sentencing judge's reference to the drugs and paraphernalia found at the premises was permissible: it shed light on whether the offences were isolated or out of character, and on the applicant's capacity to fulfil the supply orders he had accepted. This did not contravene the principle in De Simoni v The Queen (1981) 147 CLR 383, which prohibits treating uncharged aggravating circumstances as though they constituted a more serious charged offence. The agreed supply revealed in the intercepts was also properly treated as no less serious than completed physical supply, given the genuine commercial nature of the transactions.

The Court rejected the submission that the applicant's placement at the upper end of the middleman scale was unsupported. That assessment was properly grounded in the tenor of the intercepts and the number and nature of the deals negotiated. The systemic and repeated character of the conduct was treated as the foundation for the offences' objective seriousness, regardless of the precise drug type.

On the subjective criminality grounds, the Court found nothing in the sentencing remarks to support the contention that the judge had penalised the applicant for leniency previously shown, or had treated his good work record and community ties as adversely aggravating factors. Regarding special circumstances, the Court held that the applicant's voluntary cessation of drug use, while commendable, was insufficient on its own to warrant a finding of special circumstances. A one-year parole period was considered adequate for the purposes of rehabilitation in his circumstances.

On the sentencing statistics ground, the Court noted that the statistics showed the sentence was towards the top of the range for s 25A amphetamine offences, but cautioned that the statistical population was very small (only 14 cases). The Court reiterated that such statistics have limited value where objective and subjective circumstances vary widely across cases. None of the comparable appellate decisions cited provided a reason to conclude the sentences were excessive, particularly given that the Form 1 matter warranted some additional penalty.

Orders Made

  • Leave to appeal against severity of sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may have regard to drugs and drug-related items found at an offender's premises even when those items are not the subject of the charges, provided they are used only to illuminate the nature and context of the charged conduct and not to treat uncharged circumstances as constituting a more serious offence (following De Simoni v The Queen).
  • Agreed supply, as evidenced by intercepted telephone negotiations, is not inherently less serious than proven completed supply, particularly where the intercepts reveal genuine commercial drug transactions.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, voluntary cessation of drug use alone is not sufficient to establish special circumstances justifying a departure from the standard non-parole period ratio.
  • Judicial Commission sentencing statistics carry limited weight where the relevant statistical population is small and encompasses widely varying objective and subjective circumstances; the Court of Criminal Appeal reaffirmed this caution in dismissing reliance on a population of only 14 cases.
  • In dismissing the appeal, the Court confirmed that a Form 1 offence taken into account at sentencing must be reflected by some additional penalty, even if less than would apply had the matter been charged separately (following R v Barton and R v Harris).

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- De Simoni v The Queen (1981) 147 CLR 383
- Olbrich v The Queen (1999) 73 ALJR 1550
- R v Barton (2001) 121 A Crim R 185
- R v Carter [2000] NSWCCA 490
- R v Harris [2001] NSWCCA 322
- R v Huang and Lin [2002] NSWCCA 76
- R v Kalpaxis [2001] NSWCCA 119
- R v Khaled [2001] NSWCCA 169
- R v Simpson [2001] NSWCCA 534
- R v Smiroldo [2000] NSWCCA 120