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Court of Criminal Appeal 2 December 2002

R v Jolevski

[2002] NSWCCA 472

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL NO QUESTION OF PRINCIPLE

Citation: R v Jolevski [2002] NSWCCA 472
Court: NSW Court of Criminal Appeal
Date: 2 December 2002
Judge(s): Mason P, Sperling J, Bell J

Background

The respondent, a man born in 1972, pleaded guilty at the earliest opportunity to a charge of ongoing supply of a prohibited drug (methylamphetamine) under s 25A of the Drug Misuse and Trafficking Act 1985. The offence arose from four sales of tablets to an undercover police officer at a Kings Cross nightclub and in follow-up contact over a 30-day period in September and October 2001. The total quantity supplied was 29 tablets (8.37 grams) for a total of $1,190.

The respondent's evidence at the sentencing hearing was that he had never supplied drugs to anyone before or since, that he acted only because the undercover officer repeatedly contacted and prevailed upon him to obtain tablets, and that he made little or no profit from the transactions. A charge of possessing a prohibited drug was taken into account on a Form 1.

In the District Court, Kinchington DCJ deferred sentence and placed the respondent on a good behaviour bond for 18 months under s 9 of the Crimes (Sentencing Procedure) Act 1999, together with a $3,000 fine. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence of a good behaviour bond and fine was manifestly inadequate for an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment.
  • Whether the sentencing judge's findings about the respondent's limited criminal culpability, including the significant role of police instigation, were justified on the evidence and warranted the non-custodial outcome.

Decision

The Court of Criminal Appeal unanimously dismissed the Crown appeal. Sperling J, with whom Mason P and Bell J agreed, accepted that the sentencing judge's findings were amply justified on the evidence. Those findings included that the respondent was not engaged in any drug supply business, had no prior or subsequent involvement in drug supply, and would not have offended at all but for the persistent conduct of the undercover operative.

The Court acknowledged that a non-custodial outcome for a s 25A offence was not unprecedented, noting that Crown statistics revealed at least two comparable cases where a s 9 bond had been the only penalty, out of 36 cases on the available database. The Crown's reliance on McArthur [2002] NSWCCA 390 was distinguished: in that case the offender had facilitated an ongoing supply business operated by another person, whereas here the sentencing judge found no such business involvement.

Sperling J emphasised that s 25A covers a wide spectrum of criminal culpability. On the findings made, the respondent was at the lowest end of that spectrum, sitting on the "fringe of illicit professional activity" as the sentencing judge put it. The penalty was found to be no more lenient than was appropriate on those facts, and fell short of the threshold of manifest inadequacy required to justify appellate intervention on a Crown appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Section 25A of the Drug Misuse and Trafficking Act 1985 encompasses a very wide range of criminal conduct, and culpability at the lowest end of that range can, in appropriate circumstances, support a non-custodial sentence.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a s 9 good behaviour bond is not necessarily manifestly inadequate for an ongoing supply conviction where the sentencing judge makes supportable findings of minimal criminal involvement.
  • The threshold for intervention on a Crown appeal is that the sentence must be manifestly inadequate; a merely lenient sentence, consistent with the findings made at first instance, does not meet that bar.
  • Where an offender's participation in drug supply is found to have been entirely reactive to persistent police instigation, and where there is no evidence of involvement in any supply business, those findings can substantially reduce assessed criminal culpability, even though the police conduct is not characterised as improper.
  • Appellate courts will generally respect findings of fact made by a sentencing judge where those findings are supported by the evidence, and will not substitute their own assessment merely because a different outcome was available.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing drug supply)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)

Cases:
- McArthur [2002] NSWCCA 390