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15
Court of Criminal Appeal 15 November 2002

REGINA v CBK

[2002] NSWCCA 457

Also reported as (2002) 135 A Crim R 260
Drugs

Citation: REGINA v CBK [2002] NSWCCA 457
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant pleaded guilty in the Sydney District Court to three offences of supplying methylamphetamine under the Drugs Misuse and Trafficking Act 1985. The first two counts arose from possession of the drug in quantities triggering deemed supply provisions. The third and most serious count, brought under section 25A of that Act, arose from multiple sales of the drug to an undercover police officer over a four-day period in July 2001 as part of a covert controlled operation.

The applicant was 41 years old at the time of the offences, had a limited prior criminal history, and had not previously served a term of imprisonment. His background included childhood trauma, a history of depression, and drug dependence that the sentencing judge accepted was a contributing factor in his offending. He had also re-offended twice while on bail for earlier charges, a factor the Court treated as significant.

The District Court imposed an overall sentence of seven years, with an effective non-parole period of five years. The applicant sought leave to appeal against the severity of those sentences, arguing, among other matters, that the accumulated non-parole period was excessive and failed to properly account for the effect of accumulation.

  • Whether the head sentences imposed for each count were within the appropriate range having regard to the objective seriousness of the offences and the applicant's personal circumstances
  • Whether the sentencing judge correctly applied the totality principle when structuring the accumulated non-parole periods
  • What weight should be given to the applicant's medical and psychiatric conditions in determining the appropriate non-parole period
  • Whether section 25A offences should attract meaningfully higher sentences than single supply offences under section 25

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, but only in respect of the non-parole period for count 3. The head sentences were confirmed as within range. Bell J, with whom Wood CJ at CL and Dowd J agreed, found that the sentencing judge had not properly accounted for the effect of accumulation when setting the non-parole period for the most serious count.

On the applicant's personal circumstances, Bell J noted that medical and psychiatric evidence supported the proposition that his various conditions would be better managed in the community and that deterioration was possible in the foreseeable future. These factors, combined with the accumulated structure of the sentences, informed the Court's decision to reduce the non-parole period for count 3 from three years to two years.

Wood CJ at CL emphasised that section 25A was introduced to provide a strong deterrent against ongoing drug trading. His Honour reiterated that an offender charged under section 25A cannot characterise the conduct as an isolated event or expect the more lenient treatment that might follow a single supply offence. The head sentence in this case was, in his Honour's view, well within range.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court confirmed
  • Non-parole period with respect to count 3 varied to two years, commencing 27 August 2003 and expiring 26 August 2005

Key Takeaways

  • Section 25A of the Drugs Misuse and Trafficking Act 1985 targets ongoing drug trading and carries a maximum penalty significantly higher than a single supply offence under section 25; the Court of Criminal Appeal confirmed that sentences for section 25A offences must reflect that elevated legislative intention.
  • An offender convicted under section 25A cannot characterise repeated sales as isolated conduct or expect sentencing treatment comparable to a single supply charge.
  • Where a sentencing court imposes accumulated sentences, the effect of that accumulation must be properly considered when setting each individual non-parole period; failure to do so constitutes a sentencing error amenable to appellate correction.
  • Medical and psychiatric conditions that are better managed in the community, and that carry a risk of deterioration, are relevant considerations in determining the minimum period an offender must serve before being eligible for parole.
  • Re-offending while on bail is a significant aggravating factor that the Court treated as bearing on the overall appropriateness of the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A, 29

Cases Cited:
- R v Bacon [2000] NSWCCA 549
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- R v Butcher [2001] NSWCCA 188
- R v Fogg [2002] NSWCCA 395
- R v Hennock [2002] NSWCCA 229
- R v Hofer [2001] NSWCCA 544
- R v Hoon & Pouoa [2000] NSWCCA 137
- R v Khaled [2001] NSWCCA 169
- R v L (Unreported) NSWCCA, 17 June 1996
- R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
- R v Smith [2002] NSWCCA 378
- R v Vachelac [1981] 1 NSWLR 351