Citation: [2002] NSWCCA 450
Court: NSW Court of Criminal Appeal
Date: 13 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J
Background
The applicant pleaded guilty in the District Court to two drug supply offences. The first was a charge of ongoing supply of cocaine at Kings Cross on three separate occasions within a 30-day period, contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The second was a charge of supplying cannabis over approximately a 12-month period. Police had identified the applicant through both a covert operation and a random vehicle stop.
The sentencing judge also took into account eight additional offences on a Form 1 notice (a procedural mechanism allowing a court to consider uncharged or untried matters when sentencing, without formally convicting the offender of them). Those eight matters included multiple counts of supplying cannabis, amphetamines, and ecstasy, as well as two goods in custody charges.
The District Court sentenced the applicant to a total effective term of three years and six months imprisonment, with a non-parole period of two years and six months. The applicant sought leave to appeal on the ground that the sentences were too severe.
Legal Issues
- Whether the sentencing judge failed to apply an adequate discount under the principles in R v Ellis (1986), which recognise that voluntary disclosure of otherwise unknown offending warrants additional leniency
- Whether the sentencing judge failed to give proper credit for the guilty plea on the cocaine charge (Count 1)
- Whether the overall sentences were manifestly excessive
- Whether the incorrect maximum penalty stated to the sentencing judge (15 years instead of 10 years for the cannabis supply offence) affected the validity of the sentences
Decision
On the Ellis discount, Bell J accepted that the applicant's disclosure of his involvement in the cannabis supply offence was significant: the Crown would not otherwise have had a case against him on that charge. That voluntary disclosure warranted a meaningful element of leniency. However, the court noted that the eight Form 1 offences, which involved separate supplies of different drugs, did not attract the same Ellis consideration, and the applicant had denied knowledge of drugs when first arrested on one occasion.
On the erroneous maximum penalty, counsel on both sides had incorrectly informed the sentencing judge that the maximum for the cannabis supply offence was 15 years, when the correct maximum under s 25(1) of the Drug Misuse and Trafficking Act 1985 was 10 years. The Court acknowledged this error but concluded it did not necessarily invalidate the sentence, particularly since the head sentence of three years fell well within the correct maximum.
On the question of manifest excess, Bell J found that the sentences, considered as a whole, were not outside an appropriate range. The applicant had been a street-level runner earning around $3,000 per week, supplying multiple drug types to customers in a commercial operation. Taking into account the Form 1 matters, the structure of the two sentences, and the credit given for the guilty plea and voluntary disclosure, no lesser sentence was warranted.
The court also commented on best practice for Form 1 matters. Dowd J observed that Form 1 offences are generally best attached to the most serious charge before the court, to give the sentencing judge maximum flexibility. Where a lesser offence is inextricably linked to other matters, a separate Form 1 can be used, but the default should be to attach Form 1 matters to the offence carrying the greater maximum penalty.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Ellis principle requires a sentencing court to extend a meaningful additional element of leniency where an offender voluntarily discloses guilt of an offence that the Crown could not otherwise have established, but that principle does not automatically extend to Form 1 matters arising from the same episode.
- An incorrect maximum penalty being stated to a sentencing judge does not necessarily invalidate a sentence where the actual penalty imposed falls comfortably within the correct statutory maximum.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a street-level drug runner earning significant wages from the operation, with multiple drug types involved and numerous Form 1 offences, may properly receive a sentence at or near the upper end of the available range.
- Form 1 matters should ordinarily be attached to the most serious offence before the court, maximising the sentencing judge's flexibility to reflect the full weight of the offender's conduct.
- Where Form 1 offences are inextricably connected to a specific lesser charge, a separate Form 1 may be appropriate, but this should be the exception rather than the default approach.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW)
Cases
- R v Ellis (1986) 6 NSWLR 603
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Bimahendali (1999) 109 A Crim R 355