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Court of Criminal Appeal 11 November 2002

R v Sewell

[2002] NSWCCA 453

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SUPPLY METHYLAMPHETAMINE CANNABIS APPEAL DISMISSED

Citation: R v Sewell [2002] NSWCCA 453
Court: NSW Court of Criminal Appeal
Date: 11 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The appellant was convicted after trial of two offences of deemed supply of prohibited drugs, specifically 3.68 grams of methylamphetamine and 42.5 ecstasy tablets valued between $1,260 and $1,680. He separately pleaded guilty to a third charge of supplying 42.6 grams of cannabis leaf. All three offences were prosecuted under the Drug Misuse and Trafficking Act 1985.

The District Court sentenced the appellant to a fixed term of two years for the methylamphetamine offence, four years with a non-parole period of two years for the ecstasy offence, and a fixed term of 18 months for the cannabis offence. He sought leave to appeal on the grounds that the sentences were manifestly excessive.

The sentencing judge (Balla DCJ) had considered the appellant's remorse, his cooperation with police, and his efforts to change his lifestyle since arrest. Police had found the drugs in a carry bag, along with resealable plastic bags and scales at his premises.

  • Whether the sentencing judge erred in assessing the seriousness of the offences given the relatively limited quantities of drugs involved
  • Whether insufficient allowance was made for the appellant's status as a user of ecstasy and amphetamine
  • Whether the sentencing judge wrongly assumed that exceptional circumstances were required before a non-custodial sentence could be imposed
  • Whether the sentence for the cannabis offence was manifestly excessive

Decision

The Court of Criminal Appeal rejected each ground of appeal. On the question of drug quantities, Wood CJ at CL accepted that the offences were far less serious than large-scale importation cases, but found the sentencing judge had not equated them with such cases. The Court also confirmed that the mere fact offences could have been dealt with in the Local Court does not cap the available sentences at Local Court maximums.

The appellant's argument that the drugs were largely for his own use was rejected. The jury had already rejected that claim at trial, and the Court found no basis for revisiting that factual finding on appeal. The presence of scales and resealable bags further undermined the personal use contention.

The argument that dealing to feed an addiction could mitigate the offending was also dismissed. The appellant had given evidence that the drugs were entirely for personal use and denied dealing at all, which was inconsistent with claiming a mitigatory addiction-based dealing argument. There was also no evidence of addiction, as distinct from a longstanding recreational habit.

Applying the threshold from Regina v Simpson, the Court held that the appellant had not demonstrated that a different sentence was warranted in law. Although the sentences were at the upper end of the range, particularly for the cannabis offence, the Court was satisfied that the favourable non-parole period adequately reflected the appellant's subjective circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the fact drug offences could have been dealt with in the Local Court does not restrict the sentencing court to Local Court maximum penalties; the full range of District Court sentences remained available.
  • A defendant who at trial denied any dealing cannot, on appeal, invoke the mitigatory principle that dealing to feed an addiction reduces culpability: those two positions are fundamentally inconsistent.
  • Factual findings made by a jury, including rejection of a personal use defence, are not open to revisitation on a severity appeal; the Court of Criminal Appeal is a court of error, not a factual review tribunal.
  • In dismissing the appeal, the Court applied the test from Regina v Simpson (2001) 53 NSWLR 704, requiring an appellant to show that some sentence other than that imposed was warranted in law and should have been passed.
  • Sentences at the top of the range are not automatically manifestly excessive where multiple separate drug offences are involved and the sentencing court has given appropriate weight to favourable subjective circumstances through the non-parole period.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases
- Regina v Bernath (1997) 1 VR 271
- Regina v Crombie [1999] NSWCCA 297
- Regina v Kirikian [2002] NSWCCA 422
- Regina v Selim, NSWCCA, 19 May 1998
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Ziggy Hauser, NSWCCA, 11 December 1997