AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 4 February 2004

Regina v Salazar

[2004] NSWCCA 13

Drugs
CRIMINAL LAW SENTENCE SUPPLY OF ILLICIT DRUGS (COCAINE) NO SPECIAL POINT OF PRINCIPLE

Citation: Regina v Salazar [2004] NSWCCA 13
Court: New South Wales Court of Criminal Appeal
Date: 4 February 2004
Judge(s): Grove J, Sully J, Bell J

Background

The applicant pleaded guilty in the Sydney District Court to one count of supplying cocaine, with a further supply offence taken into account on a Form 1 (a procedure allowing related charges to be considered at sentencing without a separate conviction). Police found 17.9 grams of cocaine in the applicant's vehicle in Surry Hills, and a further 50.8 grams at his home, stored in a homemade waterproof container near a barbecue. The charged count related to the larger quantity found at the home.

Davidson ADCJ sentenced the applicant to two years and eight months imprisonment with a non-parole period of two years. The applicant had not been in employment since a 1984 industrial injury and had a prior record, though none for drug offences in the preceding fifteen years. The sentencing judge treated him as effectively free of relevant convictions for that period.

The applicant sought leave to appeal on five grounds, contending the sentence was affected by miscarriage of justice, procedural error, and was manifestly excessive.

  • Whether the sentencing judge denied the applicant a fair hearing by declining to accept, without supporting evidence, counsel's assertions about the applicant's contrition and remorse
  • Whether the sentencing judge erred in refusing an adjournment to call the author of the pre-sentence report
  • Whether the sentencing judge incorrectly treated the deemed supply offence as more serious than it was
  • Whether the sentencing judge failed to give adequate consideration to subjective factors and special circumstances when fixing the non-parole period
  • Whether the sentence was, in its cumulative effect, manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal held there was no miscarriage of justice. The sentencing judge was entitled to decline to accept bare assertions of contrition and remorse made from the bar table, without evidence. The applicant elected not to give evidence himself, and could not then complain that his asserted remorse went unacknowledged.

On the adjournment application, the Court noted that the original request was made specifically to challenge the pre-sentence report's assessment that the applicant was unsuitable for non-custodial forms of punishment. Once the sentencing judge concluded that full-time custody was required, the suitability for alternatives became irrelevant. No error arose from refusing the adjournment on that basis.

Regarding the objective criminality ground, the Court rejected the premise that the sentencing judge had incorrectly equated deemed supply with actual supply. The Court observed that deemed supply is not always less serious than actual supply, and that the facts here supported a finding that the applicant had dealt with the cocaine. The subjective factors ground similarly failed, with the Court finding no overlooked circumstance that would have warranted a reduction. On special circumstances, the Court cited the principle from R v Simpson that a failure to explicitly explain the non-variation of the statutory non-parole proportion will not readily support an inference that the judge failed to consider the issue.

With all individual grounds rejected, the fifth ground alleging manifest excess was left without foundation. The Court found the sentence fell well within the range of a sound exercise of sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is entitled to require evidence before accepting assertions of contrition or remorse made solely through counsel's submissions; an applicant who elects not to give evidence cannot later complain that unsworn claims went unaccepted.
  • Refusing an adjournment to examine the author of a pre-sentence report is not erroneous where the purpose of the examination becomes irrelevant to the sentence ultimately imposed.
  • Deemed supply is not automatically treated as less serious than actual supply; the seriousness of each offence turns on its particular facts.
  • Under the applicable sentencing procedure, a sentencing judge's silence on why the statutory non-parole proportion was not varied does not, without more, establish that the judge failed to turn their mind to special circumstances, consistent with the principle stated in R v Simpson (2001) 53 NSWLR 704.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that cumulative grounds of appeal do not individually reinforce one another; where each ground fails on its own merits, a composite claim of manifest excess is similarly unsustainable.

Legislation and Cases Referenced

Cases:
- R v Simpson (2001) 53 NSWLR 704

Legislation:
- Crimes Act 1900 (NSW), former s 556A (recognizances without conviction, as applicable at the time of the prior drug matter)
- Sentencing Procedure Act (NSW) (the applicable sentencing legislation governing non-parole period proportions, referred to but not specifically named in the judgment)