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Court of Criminal Appeal 1 March 2004

R v Collins

[2004] NSWCCA 30

Drugs

Citation: R v Collins [2004] NSWCCA 30
Court: New South Wales Court of Criminal Appeal
Date: 1 March 2004
Judge(s): Levine J, Simpson J, Barr J (Barr J delivering the principal judgment)

Background

The respondent, a young woman aged nineteen at the time of the offending, pleaded guilty in the District Court to the ongoing supply of cocaine. The offending involved four discrete transactions supplying a total of slightly less than one gram of cocaine to an undercover police officer, with a further 2.6 grams found concealed on her person at arrest. The total cocaine involved was approximately 3.5 grams.

The respondent had been in a relationship with a co-offender who organised the sales. She drove him to each transaction because he had lost his licence. She gave evidence that he had verbally threatened and intimidated her throughout the relationship, that she had become emotionally and socially dependent on him, and that she feared his anger if she refused to participate. The sentencing judge accepted this evidence, along with evidence of a difficult upbringing and genuine rehabilitation following her arrest.

District Court Judge Maguire QC sentenced the respondent to three years imprisonment by way of periodic detention (a form of part-time custody), with a non-parole period of two years and three months. The Crown appealed on the basis that the sentence was inadequate.

  • Whether the sentencing judge erred in finding "exceptional circumstances" that justified imposing periodic detention rather than full-time imprisonment for a drug supply offence.
  • Whether the sentencing judge mischaracterised or underestimated the respondent's role in the offending.
  • Whether the sentencing judge erroneously found there was no need for personal deterrence.
  • Whether the sentencing judge failed to give adequate consideration to denunciation of the crime.
  • Whether the sentence was so manifestly inadequate as to demonstrate appellable error.

Decision

The Court of Criminal Appeal dismissed the Crown's appeal in its entirety, with all three judges agreeing in Barr J's reasons.

On the factual findings, the Court found no substance in the Crown's challenge to the sentencing judge's finding that the respondent had been subject to verbal threats. The respondent's own evidence clearly demonstrated that the co-offender had threatened her with physical violence if she did not comply. The Court also rejected the submission that the sentencing judge had overstated the degree to which the respondent was dominated by the co-offender.

On the question of exceptional circumstances, the Court affirmed the established principle that a person who supplies drugs in the manner the respondent did ordinarily must receive a full-time custodial sentence unless exceptional circumstances exist. However, the Court reiterated that the discretion of sentencing judges to depart from full-time custody should be preserved, and that it is impossible to define rigidly what cases fall outside the ordinary. Barr J concluded that the case was genuinely unusual and that the sentencing judge was entitled to find exceptional circumstances.

On the remaining grounds, the Court found no error in the sentencing judge's conclusion that personal deterrence was not required, noting that the conclusion was grounded in the evidence. The Court also found no substance in the complaint about denunciation, observing that the sentencing judge had expressly acknowledged the seriousness with which the community regards drug offences and had addressed general deterrence. The assertion that the sentence was manifestly inadequate was characterised as, in substance, a disagreement with the characterisation of the case as exceptional rather than a demonstration of error.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction for ongoing drug supply ordinarily requires full-time imprisonment, but sentencing courts retain a preserved discretion to impose a lesser sentence where exceptional circumstances are established.
  • The Court of Criminal Appeal confirmed that "exceptional circumstances" in this context cannot be exhaustively or rigidly defined, following R v Allpass (1994) 72 A Crim R 561.
  • In dismissing the appeal, the Court emphasised that appellate intervention is not warranted merely because the Crown disagrees with a sentencing judge's characterisation of a case as exceptional; error must be demonstrated.
  • Where a sentencing judge finds an offender was substantially dominated and instrumentalised by a co-offender, and the evidence supports that finding, an appellate court will be slow to disturb it.
  • No error arose from a sentencing judge's failure to use the specific word "denunciation" in sentencing remarks, provided the remarks addressed the community's view of the offending and the need for general deterrence.

Legislation and Cases Referenced

Cases:
- R v Lansdell, Court of Criminal Appeal, 23 May 1996 (unreported), per Gleeson CJ
- R v Allpass (1994) 72 A Crim R 561

Legislation: No specific legislation was cited in the provided judgment text.