Citation: [2003] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 1 September 2003
Judge(s): Ipp JA, Dunford J, Greg James J
Background
The appellant was convicted in the District Court of one count of ongoing supply of a prohibited drug (heroin) contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. That provision makes it an offence to supply a prohibited drug (other than cannabis) on three or more separate occasions within 30 consecutive days, for financial or material reward, carrying a maximum penalty of 20 years' imprisonment.
The prosecution case rested on three controlled purchases made by an undercover police officer, referred to as "Sally", in Nimbin between 21 April and 10 May 2001. On each occasion, Sally used an intermediary to approach the appellant, and heroin changed hands in exchange for $50. The appellant was sentenced to 3 years and 8 months' imprisonment with a non-parole period of 2 years and 9 months.
The appellant challenged both her conviction and the sentence. On conviction, the sole dispute concerned the third transaction. On sentence, the challenge was directed entirely at the sentencing judge's refusal to find special circumstances that would have extended the parole period.
Legal Issues
- Whether there was sufficient evidence for the jury to find that the third supply was made "for financial or material reward," given that no witness directly observed the intermediary handing the $50 to the appellant on that occasion
- Whether the sentencing judge erred by declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 to allow a longer period of post-release supervision in aid of rehabilitation
Decision
On the conviction appeal, the Court found that direct observation of the payment was not required. In the first two transactions, the intermediary was seen physically handing $50 to the appellant. In the third transaction, the intermediary was seen heading back toward the hotel where the appellant had been, but the actual payment was not witnessed. The Court held it was entirely open to the jury, applying common sense, to infer that the intermediary returned to pay the appellant on that third occasion in the same way as on the first two.
Dunford J noted the pattern was consistent across all three transactions: Sally engaged an intermediary, the intermediary spoke to the appellant, the appellant provided heroin, and money changed hands. The slight variation in timing (on the third occasion Sally paid the intermediary after receiving the heroin, rather than before) was described as a minor difference of no significance. The appeal against conviction was dismissed.
On sentence, the Court rejected the contention that a longer non-parole period was warranted to facilitate rehabilitation. The appellant had a significant criminal history, including prior drug supply convictions, and had twice tested positive for drugs while in custody. While she had attended drug and alcohol sessions in prison, the Court observed that this alone was insufficient. There was no firm commitment to an intensive rehabilitation program and no reliable prediction that a longer parole period would result in successful rehabilitation.
Dunford J articulated the principle that reducing a non-parole period to facilitate rehabilitation requires "significant positive signs" that rehabilitation is likely to succeed, not merely a possibility. A general aspiration to change, without concrete evidence supporting that outcome, does not meet that standard. The sentence appeal was dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed; sentence confirmed
Key Takeaways
- A jury may draw reasonable inferences about the receipt of financial reward from the overall pattern of conduct, even where the specific act of payment on one occasion was not directly observed.
- Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the element of "financial or material reward" can be inferred from circumstantial evidence, provided the inference is reasonably open on the evidence as a whole.
- Finding special circumstances to extend post-release supervision requires more than a hope or aspiration for rehabilitation. The Court of Criminal Appeal confirmed that there must be significant positive signs indicating that rehabilitation is likely to succeed if a longer supervisory period is permitted.
- Attendance at in-custody programs does not automatically support a finding of special circumstances, particularly where other conduct (such as positive drug tests while imprisoned) undermines confidence in the prospects of successful rehabilitation.
- No error was established in the sentencing judge's exercise of discretion, and the Court confirmed the sentence without alteration.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases cited: No cases cited in the provided text.