Citation: [2003] NSWCCA 360
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2003
Judge(s): Barr J, Greg James J, Howie J
Background
The appellant was convicted in the District Court at Lismore of supplying a prohibited drug on an ongoing basis under s.25A of the Drug (Misuse and Trafficking) Act 1985. The conviction arose from three separate sales of heroin to an undercover police operative over three consecutive days in September 2000, each involving small amounts of the drug and a payment of $120. The total quantity supplied across the three transactions was 0.9 grams, for a combined sum of $360.
At trial, the appellant denied any supply had occurred and contended that the undercover operative's evidence, and any evidence supporting it, was fabricated. The jury rejected that defence and returned a guilty verdict. The appellant was sentenced to three years imprisonment with a non-parole period of 27 months, with the sentencing judge accounting for broken periods of pre-sentence custody.
The appellant sought leave to appeal against both conviction and sentence before the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge's direction to the jury about the withdrawal of an alternative verdict created a miscarriage of justice, by possibly conveying that the jury could convict even if not satisfied of all three supplies, or could only acquit if not satisfied of any of them
- Whether the alternative verdict under s.25A(4) of the Drug (Misuse and Trafficking) Act 1985 should have been left to the jury as a matter of law, rather than withdrawn
- Whether the sentence was excessive having regard to the small quantity of drugs involved, the failure to find special circumstances, and the fact that part of the sentence would be served in protective custody under onerous conditions
Decision
On the conviction appeal, the Court rejected the argument that the trial judge's direction concerning the withdrawal of the alternative verdict caused a miscarriage of justice. The Crown and the defence had both sought the withdrawal of the alternative verdict at trial, and defence counsel had consistently opposed it being left to the jury. The Court found no proper basis upon which the jury would have treated the evidence on any one of the three supply occasions differently from the others, undermining the suggestion that the withdrawal materially prejudiced the appellant.
The Court also rejected the submission, raised for the first time in oral argument on appeal, that the trial judge had erred in withdrawing the alternative verdict at all. This submission was directly inconsistent with the position the defence had taken at trial. The Court noted that the point had not been raised in the original grounds of appeal or the written submissions, and that trial counsel had actively joined the Crown in seeking the withdrawal. No error in the trial judge's approach to the jury directions was established.
On the sentence appeal, the Court examined the appellant's contention that serving time in protective custody amounted to onerous circumstances warranting a reduced sentence or a finding of special circumstances. The Court referred to a line of recent authority requiring that such claims be properly established by evidence, covering not only the fact of protective custody but also the actual conditions of that custody. On the evidence before the Court, including a memorandum describing the appellant's access to programmes, activities, employment opportunities and time out of cells, the circumstances could not be characterised as significantly disadvantageous. The trial judge had considered these matters and the discretion to find special circumstances had not miscarried.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A submission that an alternative verdict should have been left to the jury will carry little weight on appeal where defence counsel at trial actively joined the Crown in seeking its withdrawal and consistently opposed the alternative verdict being left.
- Under s.25A of the Drug (Misuse and Trafficking) Act 1985, a jury must be unanimously satisfied of each of the same three occasions of supply before convicting; an alternative verdict provision exists under s.25A(4), but its withdrawal does not automatically create a miscarriage of justice.
- No miscarriage of justice was established merely because the trial judge withdrew the alternative verdict, where there was no rational basis for the jury to treat the evidence on any individual supply differently from the others.
- Onerous conditions of protective custody cannot ground a reduction in sentence or a finding of special circumstances unless properly established by evidence addressing the actual conditions of confinement, not merely the fact of protective custody.
- In dismissing the sentence appeal, the Court of Criminal Appeal affirmed that the categorisation of custodial circumstances as "special circumstances" falls within the sentencing judge's discretion and will not be disturbed on appeal without demonstrated error.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss.25A(1), 25A(3), 25A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Ita [2003] NSWCCA 174
- Sanderson (NSWCCA, unreported, 18 July 1994)
- Totten [2003] NSWCCA 207