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Court of Criminal Appeal 22 March 2002

R v Gill

[2002] NSWCCA 93

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF HEROIN FOR REWARD NON PAROLE PERIOD SPECIAL CIRCUMSTANCES

Citation: R v Gill [2002] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 22 March 2002
Judge(s): Dunford J, Carruthers AJ

Background

The applicant pleaded guilty in the District Court at Bathurst to ongoing supply of heroin for reward under s 25A of the Drugs Misuse and Trafficking Act 1985, an offence carrying a maximum of 20 years' imprisonment. The charge arose from a series of transactions in June and July 2000 in which the applicant sold small quantities of heroin to undercover police officers, in some instances through an intermediary. The applicant was 34 years old at sentencing, had a lengthy criminal record dating back to 1980, and had a history of heroin addiction from the age of 16.

District Court Judge Gibson QC sentenced the applicant to 3 years and 6 months' imprisonment with a non-parole period of 2 years and 8 months (approximately 78 percent of the head sentence). That sentence was made cumulative on a separate 6-month sentence the applicant was already serving. The sentencing judge gave a 25 percent discount for the early guilty plea.

The applicant sought an extension of time and leave to appeal, contending the sentence was excessive both as to the head sentence and the non-parole period.

  • Whether the head sentence was excessive, given the small quantities involved and the applicant's status as an addict supplying to fund his own habit
  • Whether the accumulation of sentences on the existing 6-month term required a reduction on totality grounds
  • Whether the non-parole period was excessive, particularly when viewed against the total period of continuous custody arising from the accumulated sentences

Decision

The Court of Criminal Appeal rejected the argument that the head sentence was manifestly excessive. Referring to several earlier decisions of the Court, Dunford J confirmed that the gravamen of an offence under s 25A is the repetition, system, and organisation of regular supply. The quantity of drug involved, while relevant, is not the only material consideration. The section is directed at those who keep the heroin trade operating, including street-level dealers such as the applicant.

The Court also rejected the totality argument. Because the present offence was entirely unrelated to the matter already being served, it was appropriate to impose the sentences cumulatively. Given that the earlier sentence was comparatively short, the principle of totality did not require any reduction.

However, the Court accepted the argument concerning the non-parole period. When the 3-month pre-sentence custody, the 6-month prior sentence, and the 3-year 6-month sentence were combined, the total custodial time reached 51 months. The existing non-parole period would have left the applicant eligible for parole for only around 10 months, a period the Court regarded as insufficient to facilitate genuine reintegration. Dunford J found that the sentencing judge appeared to have overlooked this consideration, making it necessary to resentence.

In fixing the revised non-parole period, the Court balanced the objective seriousness of the offence and the applicant's circumstances at the time (including that the offence was committed while on bail and subject to two recognisances and a periodic detention sentence) against the need for a meaningful parole period. The Court identified 1 year of parole eligibility as appropriate, and treated the accumulation of sentences as constituting special circumstances justifying a non-parole period below the statutory 75 percent threshold.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Head sentence confirmed
  • Non-parole period quashed and replaced with a non-parole period of 2 years and 6 months, commencing 17 April 2001 and expiring 16 October 2003

Key Takeaways

  • Under s 25A of the Drugs Misuse and Trafficking Act 1985, the critical feature of ongoing supply is the repetition and systematic nature of the conduct; the small quantity of drug involved does not, of itself, make a substantial sentence excessive.
  • A sentencing court is not required by statute to cap a non-parole period at exactly 75 percent of the head sentence; the statutory minimum is that the non-parole period must not be less than three-quarters of the term, absent special circumstances.
  • The accumulation of sentences can itself constitute special circumstances justifying a non-parole period below the three-quarter statutory minimum, where the combined effect of accumulated sentences would leave an inadequate period for supervised reintegration on parole.
  • Where the principle of totality is raised on appeal, the Court of Criminal Appeal will consider whether the offences are related; unrelated offences served cumulatively do not automatically attract a totality reduction, particularly where the concurrent sentence is comparatively short.
  • A sentencing court must have regard to the minimum period of detention warranted by reference to both the subjective features of the offender and the objective seriousness of the offence, including whether the offending occurred while on bail or subject to other orders.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25A

Cases:
- R v Smiroldon [2000] NSWCCA 120
- R v Hofer [2001] NSWCCA 544
- R v Hoon and Pouoa [2000] NSWCCA 137
- R v Kaled [2001] NSWCCA 169
- Power v The Queen (1974) 131 CLR 623
- R v Simpson [2001] NSWCCA 534