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Court of Criminal Appeal 1 April 2003

R v. Depalo

[2003] NSWCCA 80

Drugs

Citation: R v Depalo [2003] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 1 April 2003
Judge(s): Studdert J; Smart AJ

Background

The applicant, a businessman with no prior convictions, pleaded guilty to a single offence of supplying approximately 6.25 grams of cocaine (at 20% purity) in early December 1999. He had arranged the supply as an intermediary between an associate and a friend of an acquaintance, describing it as a "once off favour." He claimed to have made no profit from the transaction.

The matter was not prosecuted until March 2002, more than two years after the offence, despite police having intercepted telephone conversations at the time and conducting contemporaneous surveillance. The applicant pleaded guilty before the magistrate and gave evidence at sentencing.

In the District Court, Taylor DCJ imposed a sentence of two years and six months imprisonment, with a non-parole period of one year, ten months and twelve days, to be served by way of periodic detention. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the District Court sentence of two years and six months (with the non-parole period to be served by periodic detention) was manifestly excessive for a single, small-quantity cocaine supply offence.
  • Whether there is any requirement to establish "exceptional circumstances" before a court can impose a non-custodial penalty for a supply offence of this kind.
  • Whether the sentencing judge applied the correct procedural approach to imposing periodic detention (including the order in which that decision should be reached).

Decision

The Court of Criminal Appeal found the sentence manifestly excessive. Applying the relevant sentencing principles, the court identified several mitigating factors: the offence involved a single supply of a relatively small quantity of cocaine, the recipient was not a vulnerable person, there was a prosecution delay of over two years despite the evidence being available, the applicant had no prior convictions, pleaded guilty at committal (with significant utilitarian value), and had demonstrated good conduct supported by testimonials and community ties.

The court also addressed the proper approach to periodic detention. It noted that the sentencing judge should have followed the statutory sequence: first determine whether a custodial sentence is warranted, and then determine whether periodic detention is appropriate. The Court of Criminal Appeal cited its earlier decision in Meyer as the source of that procedural guidance, and observed that the judge's reasons did not make clear why the term was fixed at two and a half years.

By the time of the appeal hearing, the applicant had already served 27 periods of periodic detention, equating to just over six months in custody. Taking all mitigating factors into account, together with the time already served, the Court concluded that the appropriate penalty was a fine rather than any further custodial or non-custodial detention order.

The Court also made clear that there is no requirement to establish "exceptional circumstances" in order to impose a non-custodial penalty for a single-incident supply offence involving a relatively small quantity and no vulnerable recipient.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; original sentence quashed.
  • In lieu of the sentence imposed, the applicant fined $3,300, with three months allowed from the date of judgment to pay.

Key Takeaways

  • No requirement exists, as a matter of law, to establish "exceptional circumstances" before a non-custodial penalty can be imposed for a single-incident cocaine supply offence involving a small quantity and no vulnerable recipient.
  • The Court of Criminal Appeal confirmed that a sentencing court must follow the correct statutory sequence when imposing periodic detention: first determine whether a custodial sentence is warranted, then consider whether periodic detention is the appropriate mode of serving it.
  • A prosecution delay of over two years, where evidence was available at the time of the offence, is a factor to be weighed in the offender's favour at sentencing.
  • Where the cumulative effect of mitigating factors (including time already served on periodic detention, absence of prior convictions, a guilty plea, and good character evidence) is sufficiently strong, a fine may be the correct penalty even for a supply offence carrying a maximum of 15 years imprisonment.
  • Sentence appeals require the appellate court to re-sentence based on the evidence properly before the original court, not on suspicions raised by unsatisfactory evidence from the offender.

Legislation and Cases Referenced

Cases:
- R v PM Clarke (NSWCCA, unreported, 15 March 1990)
- R v JR Bardo (NSWCCA, unreported, 14 July 1992)
- R v Ozer (NSWCCA, unreported, 9 November 1993)
- R v Adam Eli Meyer [2002] NSWCCA 451

Legislation: The maximum penalty for the supply offence was noted as 15 years imprisonment and/or a fine of 2,000 penalty units; the indictable quantity for cocaine was referenced as 5 grams. Specific legislative provisions were not named in the text provided.