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6
Court of Criminal Appeal 27 September 2002

Regina v Raymond Francis Fogg

[2002] NSWCCA 395

Drugs
APPEAL AGAINST SENTENCE GOING SUPPLY OF AMPHETAMINES RELATIVELY SMALL AMOUNTS AND LOW PURITY INVOLVED WIFE IN THE OFFENCES SOME CRIMINAL RECORD STRONG SUBJECTIVE CASE

Citation: Regina v Raymond Francis Fogg [2002] NSWCCA 395
Court: NSW Court of Criminal Appeal
Date: 27 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant, a 54-year-old man from Cessnock, pleaded guilty in the Newcastle District Court to supplying a prohibited drug on an ongoing basis, contrary to section 25A of the Drug Misuse and Trafficking Act 1985. The offence involves supplying a prohibited drug other than cannabis on three or more occasions within thirty consecutive days for financial or material reward. The drug supplied on each occasion was methylamphetamine.

Over a three-week period in October and November 2000, an undercover police officer made six controlled purchases of methylamphetamine from the applicant and, on one occasion, from his wife at the family home. The amounts sold were relatively small, and purity testing revealed very low concentrations of methylamphetamine. The applicant was arrested on 10 November 2000.

The applicant's wife also faced charges and received a suspended sentence. The sentencing judge found that her will had been overborne by the applicant, who admitted threatening to evict her from the home if she did not participate in the transactions. This coercive conduct was treated as a serious aggravating factor against the applicant.

  • Whether the sentence of four years and four months imprisonment with a non-parole period of three years (subsequently adjusted from three years and two months) was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave sufficient weight to the strong subjective case in mitigation, including the applicant's psychiatric condition and personal history
  • Whether a finding of special circumstances warranted a greater departure from the standard ratio between head sentence and non-parole period

Decision

The Court of Criminal Appeal found that the total sentence imposed by the District Court was manifestly excessive. The court acknowledged the seriousness of ongoing drug supply offences, noting the 20-year maximum penalty as a clear statement of legislative intent, but weighed this against the relatively small quantities sold and the very low purity of the methylamphetamine involved. The court also observed that the mere quantity involved in each transaction is not, by itself, the governing consideration in assessing objective criminality.

The applicant mounted a powerful subjective case in mitigation. He had left school at 14, worked consistently in labouring roles, but suffered deep and lasting psychological harm following the death of his 14-year-old son in a car accident in 1988. Psychiatric evidence documented ongoing panic attacks, recurring nightmares, and a diagnosed psychiatric disorder. The court also noted that the applicant had received an entirely appropriate 20% discount for his guilty plea, and that evidence on re-sentence showed he had continued to make excellent progress toward rehabilitation.

The court found that the sentencing judge did not fall into error as such, but concluded that the overall sentence was nevertheless too high when the mitigating factors were weighed properly. A finding of special circumstances was confirmed, particularly on account of the applicant's psychiatric disorder, and the court resentenced the applicant accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • In lieu, the applicant sentenced to imprisonment for three and a half years, commencing 10 November 2000 and expiring 9 May 2004
  • Non-parole period of two years and three months, commencing 10 November 2000 and expiring 9 February 2003, at which time the applicant would be eligible for consideration for release to parole

Key Takeaways

  • A sentence for ongoing drug supply under section 25A of the Drug Misuse and Trafficking Act 1985 may be manifestly excessive even where the offending is treated seriously, if the drug amounts were small and the purity was low.
  • Quantity alone does not govern the assessment of objective criminality in drug supply cases; purity and overall context must also be considered, as confirmed by reference to R v Smiroldo (2000) 112 A Crim R 47.
  • Coercing a spouse or partner into participating in drug transactions constitutes a serious aggravating factor at sentencing.
  • A strong subjective case, including a significant psychiatric disorder and a compelling personal history of trauma, can justify a substantial reduction in sentence even for serious criminal offending.
  • Where special circumstances are found, courts must give real effect to that finding through a meaningful departure from the standard ratio between the head sentence and the non-parole period.

Legislation and Cases Referenced

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

Cases
- R v Hofer [2001] NSWCCA 544
- R v Smiroldo (2000) 112 A Crim R 47
- R v Thomson and Houlton (2000) 49 NSWLR 383