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Court of Criminal Appeal 9 December 2003

R v Hide

[2003] NSWCCA 371

Drugs
CRIMINAL LAW SENTENCING

Citation: R v Hide [2003] NSWCCA 371
Court: NSW Court of Criminal Appeal
Date: 9 December 2003
Judge(s): Barr J; Newman AJ

Background

The appellant was a 29-year-old single mother with sole care of a young daughter, who was also five months pregnant at the time of sentencing. Between October 2001 and her arrest, she supplied cocaine and methylamphetamine on multiple occasions to an undercover police operative, negotiating prices and providing drugs of varying purity and type. The transactions took place in a car park, with her four-year-old daughter present in the vehicle on each occasion.

She pleaded guilty in the District Court on the first day of her scheduled trial to one count of ongoing supply of a prohibited drug for financial reward. Judge Sides QC DCJ sentenced her to four years' imprisonment with a non-parole period of two years, allowing a 15 per cent discount for the guilty plea and also taking into account her withdrawal from a proposed larger transaction.

The appellant sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentence adequately reflected the hardship that imprisonment would cause to the appellant's young daughter and unborn child
  • Whether the sentence should have been reduced to reflect any entrapment or encouragement by the undercover police operative
  • Whether, taken together or individually, those factors and relevant sentencing statistics showed the sentence was manifestly excessive or outside the sentencing judge's discretion

Decision

Hardship to third parties: The Court confirmed that hardship to dependants or family members can only reduce a sentence in extreme or wholly exceptional circumstances, beyond the ordinary hardship that results whenever a family member is imprisoned. No case of exceptional hardship had been put to the sentencing judge. The judge had himself prompted evidence about childcare arrangements and found that the appellant's mother would care for the daughter. The Court found no error in the judge's conclusion that the required threshold had not been met.

Entrapment: The appellant had not raised entrapment as a ground before the sentencing judge, and the Court found that, had it been raised, it would have failed. Applying the test from R v Taouk, the relevant question is not simply whether the accused would have committed the offence without police involvement, but whether that involvement actually diminished the accused's culpability. The Court found the evidence pointed firmly in the other direction: the appellant had negotiated prices, supplied drugs of varying strength, was wary of police detection, and was operating a flexible drug supply business of her own volition.

Manifest excess and sentencing range: The Court examined Judicial Commission statistics and comparable cases from the schedule provided by the appellant's counsel. It acknowledged the sentence was high when compared with a number of other sentences imposed for the same offence. However, ongoing supply of a prohibited drug was still a relatively new offence, and the Court concluded the courts were still working out a recognisable sentencing range. The comparatively small number of cases available meant it was not possible to demonstrate error from those cases alone.

The Court found the sentencing judge's reasons were detailed and careful, addressed every relevant factor, and properly reflected the seriousness of an offender who had entered the drug trade to make large amounts of money quickly and who could supply multiple drug types. The sentence was not shown to fall outside the proper bounds of the judge's discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Hardship to dependants reduces a sentence only in extreme or wholly exceptional circumstances. Ordinary hardship flowing from a parent's imprisonment does not meet that threshold, and a failure to lead evidence of exceptional hardship at the sentencing hearing is difficult to remedy on appeal.
  • Under the test confirmed in R v Taouk, an entrapment-style argument requires the accused to demonstrate that police involvement actually diminished their culpability, not merely that they would not have offended but for police encouragement. An accused shown to be an active, independent participant in drug supply will face a high bar.
  • Where a criminal offence is relatively new, sentencing courts may not yet have established a sufficiently clear or consistent range for individual case comparisons to demonstrate appellable error, even where the sentence appears high against available examples.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that strong deterrence remains a significant sentencing consideration for commercial drug supply offences.
  • Statistical sentencing data from the Judicial Commission may be presented on a sentence appeal, but sparse data sets in a relatively new offence category will carry limited weight in demonstrating that a sentence fell outside the proper exercise of discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 32

Cases:
- R v Edwards (1986) 90 A Crim R 510
- R v Taouk (1992) 65 A Crim R 387
- R v Jason Paul Morgan (1993) 70 A Crim R 368