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Court of Criminal Appeal 2 May 2003

R v Vo

[2003] NSWCCA 124

Drugs
APPEAL AGAINST SEVERITY OF SENTENCE SMALL QUANTITY OF HEROIN JURISDICTION OF LOCAL COURT DISCOUNT FOR PLEA OF GUILTY OBJECTIVE SERIOUSNESS OF COUNTS MANIFESTLY EXCESSIVE SENTENCE

Citation: R v Vo [2003] NSWCCA 124
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2003
Judge(s): Simpson J, Levine J

Background

The applicant pleaded guilty in the District Court to three counts of supplying heroin, following undercover police operations at Cabramatta in August 2001. The total quantity of heroin involved across all three transactions was 0.09 grams, which fell within the statutory definition of a "small quantity" under the Drug Misuse and Trafficking Act 1985. Each transaction involved a sale to an undercover operative for amounts between $50 and $100.

Sorby DCJ sentenced the applicant to fixed terms of 18 months on the second and third counts, and three years with a 20-month non-parole period on the first count, with the sentences partly cumulative. The total effective sentence was three and a half years, with a non-parole period of 26 months. The applicant had been on a Section 9 bond for a similar offence at the time he committed these offences, imposed less than five months earlier.

The applicant sought leave to appeal against the severity of the sentences on four grounds. Simpson J (with whom Levine J agreed) granted leave but dismissed the appeal.

  • Whether the sentences were individually and collectively manifestly excessive, given the small quantities of heroin involved
  • Whether the sentencing judge erred by failing to take into account that the offences could have been prosecuted summarily in the Local Court, with its lower maximum penalty
  • Whether the sentence on the first count was disproportionately longer than the sentences on the other two counts, given the similar objective seriousness of all three
  • Whether the sentencing judge failed to allow an adequate discount (25 per cent rather than 15 per cent) for the early plea of guilty

Decision

On the Local Court jurisdiction ground, the Court confirmed the principle from R v Crombie and earlier authorities: the fact that charges could have been prosecuted in the Local Court is a relevant consideration in sentencing, but it does not require a District Court judge to treat the Local Court's lower jurisdictional maximum as the ceiling. The sentencing judge was entitled to take the Local Court jurisdiction into account as one factor without being bound by it, and no error was shown on this basis.

On the disparity in sentence length between the first count and the other two, the Court accepted there was some logic to the argument given the small quantities on each occasion. However, the Court found no reviewable error in the sentencing judge's approach to structuring the sentences as a whole, particularly given the cumulation was modest and the total sentence reflected the overall criminality.

On the plea discount, the Court found the sentencing judge had allowed a 15 per cent reduction in accordance with R v Thomson and Houlton, consistently with his stated intention. While one passage in the remarks on sentence could be read as linking the strength of the Crown case to the utilitarian value of the plea, the Court did not accept that reading in light of the judgment as a whole. The 15 per cent discount was within the available range and no error was established.

On manifest excess, the Court acknowledged that the small quantities were a relevant and significant factor, and that had these been first offences the argument might have had more force. The critical countervailing circumstances were that the applicant committed three further supply offences while on a bond for a similar offence, and that he did so within a short period. Both general and personal deterrence therefore carried substantial weight, and the Court was not persuaded the sentences were manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court's awareness that charges could have been dealt with summarily is a relevant consideration, but does not impose an obligation to treat the Local Court's jurisdictional maximum as a de facto ceiling.
  • Committing further drug supply offences while on a bond for a similar offence significantly elevates the weight to be given to both general and personal deterrence, even where the quantities of drugs involved are at the lowest end of the scale.
  • A 15 per cent plea discount under R v Thomson and Houlton was held to be within a sentencing judge's discretion for an early guilty plea, and the maximum available discount is not automatically warranted.
  • No error was established simply because one passage in a judge's remarks on sentence was capable of an erroneous reading, where the overall remarks disclosed a correct approach.
  • In dismissing the appeal, the Court reinforced that objective seriousness (measured here by quantity) is only one element in the sentencing calculus, and can be substantially outweighed by an offender's prior conduct and the need for deterrence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Crombie [1999] NSWCCA 297
- R v Shepherd [1999] NSWCCA 162
- R v Dalton-Morgan, unreported, NSWCCA, 14 December 1989
- R v Smith, unreported, NSWCCA, 11 September 1991