AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 4 June 2004

R v Derbas

[2004] NSWCCA 174

DrugsTheft & property
PLEA OF GUILTY SUPPLY OF PROHIBITED DRUG (CANNABIS) FORM 1 OFFENCE GOODS IN CUSTODY UTILITARIAN VALUE OF PLEA OF GUILTY SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Derbas v R [2004] NSWCCA 174
Court: New South Wales Court of Criminal Appeal
Date: 4 June 2004
Judge(s): Wood CJ at CL, Simpson J, Bell J

Background

The applicant pleaded guilty in the District Court to a single count of supplying a prohibited drug (cannabis), with the offending spanning approximately eighteen months across 2000 and 2001. The Crown case was that an organised, commercial cannabis-selling enterprise operated from a residential premises in Punchbowl, with the applicant playing a central role in its day-to-day management. Runners sold cannabis in shifts, juveniles were employed in the operation, and stolen goods were regularly accepted as payment.

Hosking DCJ sentenced the applicant to five years and six months imprisonment with a non-parole period of three years and four months, against a statutory maximum of ten years. The sentencing judge also took into account, on a Form 1, a further offence of having goods in custody reasonably suspected of having been stolen or unlawfully obtained.

The applicant sought leave to appeal, contesting the factual findings about his level of involvement, arguing the sentence was manifestly excessive, and raising an additional argument at the hearing about the way the Form 1 offence was handled.

  • Whether the sentencing judge's findings about the applicant's day-to-day control of the cannabis enterprise were internally consistent and supported by the evidence
  • Whether the sentence of five years and six months was manifestly excessive
  • Whether parity considerations, having regard to other participants, affected the appropriateness of the sentence
  • Whether the sentencing judge could lawfully increase the sentence to account for a Form 1 offence (goods in custody under s 527C of the Crimes Act 1900) where a Local Court magistrate, as at the date of sentencing, would have lacked jurisdiction to impose any sentence that extended beyond the applicant's non-parole period

Decision

On the first ground, the Court of Criminal Appeal rejected the applicant's argument that the sentencing judge's findings were internally inconsistent. The distinction drawn by Hosking DCJ between controlling an entire enterprise as its principal (which he could not find beyond reasonable doubt) and having day-to-day management of that enterprise (which he could find) was a coherent and proper one. The surveillance evidence, together with the oral evidence of two witnesses who had been customers of the enterprise, was sufficient to support the adverse findings.

The Court found no manifest excess in the sentence. The offending involved a highly organised, systematic, and prolonged commercial operation, the employment of juveniles, and thousands of individual cannabis sales. Having regard to the utilitarian value of the guilty plea and the nature of the applicant's involvement, the sentence imposed was within the proper range.

On the Form 1 issue, the Court accepted that, as at the date of sentencing in May 2003, s 58(1) of the Crimes (Sentencing Procedure) Act 1999 (in its then form, specifying a three-year period) meant a magistrate would not have had jurisdiction to impose a sentence for the goods in custody offence in a way that extended beyond the applicant's non-parole period. However, the Court rejected the argument. The applicant had elected on advice to have that offence dealt with on a Form 1, and could not have been compelled to do so. By doing so, he avoided an additional conviction on his record. The Court acknowledged that in some cases s 58 might operate as a disincentive to using the Form 1 procedure, but on the facts of this case Hosking DCJ was entitled to make a "small allowance" for the Form 1 offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding of "day-to-day control" of a drug enterprise is not inconsistent with a separate finding that the same person could not be found, beyond reasonable doubt, to have been the overall principal of the operation.
  • Sufficient evidence of high-level involvement in an organised commercial cannabis operation can be established through surveillance records alone, even without a finding that the applicant was the enterprise's ultimate controller.
  • Where an applicant voluntarily elects, on legal advice, to have a summary offence dealt with on a Form 1, the sentencing court is entitled to make some allowance for that offence when fixing the head sentence, even in circumstances where a magistrate's sentencing jurisdiction was temporarily constrained by the then-applicable version of s 58(1).
  • The Court of Criminal Appeal confirmed that s 58 of the Crimes (Sentencing Procedure) Act 1999 was amended with effect from 14 February 2004, altering the applicable period in s 58(1) from three years to a longer period; sentences imposed before that date fell to be considered under the earlier version.
  • In dismissing the appeal, the Court confirmed that the utilitarian value of a guilty plea and parity considerations, while relevant, did not render a sentence of five years and six months manifestly excessive for this level of organised commercial drug supply.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527C (goods in custody offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47, s 58(1) (as in force at date of sentencing, and as amended from 14 February 2004)
- Criminal Procedure Act 1986 (NSW), s 6(1)

Cases: No cases were cited in the portions of the judgment provided.