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Court of Criminal Appeal 11 November 2004

Regina v Ha

[2004] NSWCCA 386

Drugs
SENTENCING

Citation: Regina v Ha [2004] NSWCCA 386
Court: NSW Court of Criminal Appeal
Date: 11 November 2004
Judge(s): Giles JA, Buddin J, Smart AJ

Background

The offender was convicted by a jury of supplying a prohibited drug, specifically pseudoephedrine, after police stopped his vehicle and found 840 pseudoephedrine-based tablets weighing 305.4 grams in total. This was a deemed supply offence: because the quantity exceeded the trafficable threshold of 15 grams, possession itself gave rise to a presumption of supply. The maximum penalty for the offence was 15 years imprisonment.

The offender was described as a "pseudo-runner," meaning he purchased the tablets and on-sold them, with the tablets likely destined for conversion into methylamphetamine. Police estimated he stood to profit between $1,600 and $2,400 from the transaction. Importantly, the offending occurred while the offender was already serving a sentence of periodic detention for credit card fraud.

The sentencing judge in the District Court imposed a sentence of 15 months imprisonment with a 9-month non-parole period, to be served by way of periodic detention. The Director of Public Prosecutions appealed, arguing the sentence was manifestly inadequate.

  • Whether a sentence of periodic detention was appropriate for a deemed drug supply offence involving an appreciable quantity of prohibited drugs
  • Whether the circumstances of this case amounted to "exceptional circumstances" sufficient to justify departing from the general requirement for full-time custody
  • What weight, on resentencing, should be given to post-sentence developments including the offender's conduct during periodic detention and the impact of double jeopardy in Crown appeals

Decision

The Court of Criminal Appeal confirmed the established principle that a full-time custodial sentence is required for supply of prohibited drugs in appreciable quantities, absent exceptional circumstances. Periodic detention is not ordinarily an appropriate sentence for prohibited drug supply offences, given the high need for general deterrence in this area.

The Court found that the offender's circumstances, while favourable in a number of respects, did not rise to the level of exceptional circumstances. The sentencing judge had correctly identified special circumstances based on prior good character, family situation, and rehabilitation prospects, but those factors did not justify the departure from full-time custody that periodic detention represented. The original sentence was held to be manifestly inadequate.

On resentencing, however, the Court took into account several significant factors that moderated the sentence it would otherwise have imposed. These included the usual restraint applied in Crown appeals due to double jeopardy considerations, the absence of any advance warning to the offender that a Crown appeal was being pursued, and notably strong post-sentence conduct. The officer in charge of the periodic detention centre had described the offender as "a role model of a prisoner," and he had progressed to Stage 2 of the Periodic Detention Program.

Weighing all of these matters, the Court concluded that the sentence should still be served by way of periodic detention, but significantly increased the term to reflect the seriousness of the offence. Credit was given for the periodic detention already served.

Orders Made

  • Crown appeal against sentence allowed
  • Sentence imposed on 24 May 2004 by Shillington ADCJ quashed
  • In lieu thereof, the offender sentenced to imprisonment consisting of a non-parole period of 18 months and a total term of 2 years 3 months, to be served by way of periodic detention, each term dating from 5 June 2004
  • Credit given for periodic detention already served
  • The offender directed to report to Silverwater Periodic Detention Centre on Friday 19 November 2004 at 7pm
  • Liberty reserved to both parties to apply in respect of the Periodic Detention Order, with final settlement of that order remitted to a single judge of the Supreme Court pursuant to s 12(2) of the Criminal Appeal Act 1912

Key Takeaways

  • For deemed supply of prohibited drugs involving an appreciable quantity, the Court of Criminal Appeal confirmed that full-time custody is the starting point, with periodic detention reserved for cases of truly exceptional circumstances.
  • The presence of favourable subjective factors, including good character, strong family ties, and positive rehabilitation prospects, constitutes "special circumstances" but does not automatically amount to the higher standard of "exceptional circumstances" needed to displace a full-time custodial sentence.
  • Committing a supply offence while already serving a sentence of periodic detention is an aggravating factor under the sentencing framework applied here.
  • Post-sentence conduct and behaviour in custody can carry real weight on resentencing in a Crown appeal, particularly when combined with the double jeopardy principle that ordinarily leads the Court of Criminal Appeal to moderate what it would otherwise impose.
  • Where the original sentencing judge was not the trial judge, the Court noted that a more formalised procedure for conveying the trial evidence to the sentencing court would be preferable to the informal oral synopsis adopted in this case, though no material prejudice resulted on the facts.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 12(2)

Cases:
- R v Clark (unreported, NSWCCA, 15 March 1990)
- R v Leslie (1991) 55 A Crim R 68
- R v Pilley (1991) 56 A Crim R 202
- R v Way [2002] NSWCCA 42