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Court of Criminal Appeal 12 March 2002

R v Sparos

[2002] NSWCCA 52

Drugs
CROWN SUBMISSIONS TO SENTENCING JUDGE YOUNG OFFENDER SUSPENDED SENTENCE COURT DISCRETION TO DISMISS APPEAL MATTERS TAKEN INTO ACCOUNT LEAST SENTENCE PROPERLY IMPOSED

Citation: R v Sparos [2002] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 12 March 2002
Judge(s): Stein JA, Dowd J, Barr J

Background

The respondent, a young man aged 18 at the time of the offences, pleaded guilty to supplying cannabis leaf contrary to the Drug Misuse and Trafficking Act 1985. He was part of a large-scale drug supply operation in Western Sydney, acting as a distributor for an identified supplier. Between June and August 1999, he conducted approximately thirteen transactions selling cannabis at between $180 and $330 per ounce, using a mobile phone diverted through other numbers to mask his activities.

Two additional matters were taken into account on a Form 1 (meaning they were not separately charged but were acknowledged at sentencing and could affect the penalty imposed). These were a cocaine supply offence and an accessorial offence: the respondent had suggested to another person that they rob a known drug dealer, and those persons subsequently attended the premises armed with weapons.

The District Court sentenced the respondent to twelve months imprisonment, suspended upon entering a good behaviour bond for twelve months, plus a fine of $3,500. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the suspended sentence imposed by the District Court was manifestly inadequate for the offences of drug supply and the accompanying Form 1 matters.
  • Whether statements made by Crown counsel at the original sentencing hearing, which acknowledged that a suspended sentence was an available option, should prevent the Court of Criminal Appeal from intervening.
  • What the appropriate sentence was upon re-sentencing, having regard to the principles of double jeopardy, the respondent's rehabilitation, and the Form 1 matters.

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the suspended sentence manifestly inadequate. Dowd J, with whom Stein JA and Barr J agreed, held that the offending was sufficiently serious to warrant full-time custodial imprisonment. The respondent was not at the top of the drug trafficking hierarchy but was nonetheless an active dealer supplying drugs to end users and was subject to a recognisance at the time of the offences.

The Court acknowledged the respondent's positive rehabilitation. The sentencing judge had correctly found that the respondent had rehabilitated himself and that custodial imprisonment risked undoing that progress. However, these subjective features, while important, did not justify departing from full-time custody in the circumstances.

Regarding the Crown's concession at sentencing that a suspended sentence was available, the Court rejected this as a basis for declining to intervene. The concession did not bind the Court of Criminal Appeal, and the manifest inadequacy of the sentence, combined with the failure to adequately reflect the two Form 1 matters in the penalty, warranted intervention and re-sentencing.

In determining the fresh sentence, the Court applied the principle of double jeopardy (meaning the respondent would receive a lesser sentence than would otherwise have been warranted, because being sentenced twice for the same conduct is itself a form of additional burden). The Court also credited the 39 days already served in custody and the five and a half months already spent on the conditional suspended sentence, which had restricted the respondent's liberty. Given the short term proposed, a fixed term without a non-parole period was considered appropriate, as a further supervision period would serve little purpose given the enthusiastic reports from the Probation and Parole Service.

Orders Made

  • Crown appeal upheld.
  • The sentence and fine imposed by Sides DCJ quashed.
  • Respondent sentenced to a fixed term of one year, commencing 12 March 2002 and expiring 11 March 2003.
  • Respondent fined $3,500.

Key Takeaways

  • A suspended sentence for an active street-level drug dealer involved in a large-scale supply operation, with two serious Form 1 matters, was held to be manifestly inadequate, even where strong evidence of rehabilitation existed.
  • Where the Crown at a sentencing hearing concedes that a particular sentencing option is available, that concession does not preclude the Court of Criminal Appeal from later finding the resulting sentence manifestly inadequate and intervening.
  • Form 1 matters must be meaningfully reflected in the sentence ultimately imposed; a failure to account for the seriousness of those additional matters can itself contribute to a finding of manifest inadequacy.
  • In re-sentencing following a successful Crown appeal, the double jeopardy principle operates to reduce what would otherwise be the appropriate sentence, acknowledging the additional burden on the offender of being sentenced twice.
  • A fixed term (with no non-parole period) may be appropriate where the custodial period is short and further supervised parole would serve no practical purpose, particularly where the offender has already demonstrated strong rehabilitation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), ss 114(1), 346

Cases:
- R v Dodd (1991) 57 A Crim R 349
- R v Rose (Unreported, NSWCCA, 23 May 1996)
- R v Howland [1999] NSWCCA 10
- Everett v R (1994) 181 CLR 295
- R v Rushby (1977) 1 NSWLR 594
- R v Tait and Bartley (1979) 24 ALR 473
- DPP v Waack (2001) 121 A Crim R 134
- R v Bavadra (2000) 115 A Crim R 152
- R v Barton [2001] NSWCCA 63
- R v Blackman and Walters [2001] NSWCCA 121
- R v Perese [2001] NSWCCA 478
- GDP (1991) 53 A Crim R 112
- Edwards (1993) 67 A Crim R 487
- Allpass (1993) 72 A Crim R 561