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Court of Criminal Appeal 25 November 2004

R v Knapp

[2004] NSWCCA 419

Drugs
APPEAL AGAINST SEVERITY OF SENTENCE METHYLAMPHETAMINE PLEA OF NOT GUILTY YOUTH AND REHABILITATION PROSPECTS STATISTICAL EVIDENCE

Citation: R v Knapp [2004] NSWCCA 419
Court: NSW Court of Criminal Appeal
Date: 25 November 2004
Judge(s): Simpson J, Adams J, Davidson AJ

Background

The appellant was a young man, aged 21 at the time of the offence and 22 at sentencing, found by police to be carrying approximately 145 grams of methylamphetamine concealed in his underwear. The drugs were packaged across multiple resealable bags with an estimated street value of around $14,000. He was charged with deemed supply under section 25(1) of the Drug Misuse and Trafficking Act 1985.

Following a trial in the Sydney District Court, the appellant was convicted after a plea of not guilty. He maintained throughout, including to the probation officer and in a letter to the sentencing judge, that he had found the drugs in a park. That account had been rejected by the jury. The sentencing judge imposed 18 months imprisonment with a further 18-month balance of term, producing a total sentence of three years.

The appellant challenged that sentence on two grounds: that it was manifestly excessive, and that the sentencing judge gave insufficient weight to his youth and rehabilitation prospects.

  • Whether the total sentence of three years was manifestly excessive given the objective circumstances of the offending
  • Whether the sentencing judge gave sufficient weight to the appellant's youth and rehabilitation prospects as a (for practical purposes) first offender
  • Whether a full-time custodial sentence was nonetheless warranted for deemed supply of a significant quantity of methylamphetamine
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default of three-quarters of the head sentence

Decision

The Court of Criminal Appeal allowed the appeal, finding that while a full-time custodial sentence was objectively justified, the 18-month head sentence was excessive in all the circumstances. Davidson AJ, with whom Simpson J agreed, found that the objective circumstances did not warrant incarceration of that length, and that error was thereby made out.

Adams J added observations about the concept of "trafficking." His Honour noted that a finding of possession for supply on a single occasion does not automatically constitute trafficking in the sense used in sentencing principles, which ordinarily connote supply on more than one occasion. Nonetheless, Adams J agreed that the quantity and packaging of the drugs in this case made it evident the appellant intended to supply for profit, and that a custodial sentence was objectively appropriate regardless of whether the conduct met the technical definition of trafficking.

The Court found the case exceptional in two respects: the appellant was, for practical purposes, a first offender, and he was relatively young. These factors, taken together, constituted special circumstances justifying a non-parole period shorter than the usual three-quarter minimum. The Court also accepted that the conditions of the appellant's custody since February 2004 had been onerous, which was taken into account in resentencing.

Adams J observed that the appellant's continued denial of guilt, maintained even after conviction, was not indicative of remorse. A guilty plea, his Honour noted, might well have supported a more lenient approach, though full-time custody would not necessarily have been appealably wrong even then.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentence set aside
  • Appellant resentenced to 21 months imprisonment commencing 4 February 2004, with a non-parole period of nine months ending 3 November 2004
  • Released to parole from 3 November 2004 for the balance of the sentence, subject to supervision by the Probation and Parole Service until a responsible officer determines supervision is no longer required
  • Total sentence to end 3 November 2005

Key Takeaways

  • A single occasion of possession for supply does not automatically constitute "trafficking" in the sentencing sense, which generally requires supply on more than one occasion. However, a custodial sentence may still be appropriate where the quantity and packaging of drugs clearly indicate a commercial purpose.
  • Youth and first-offender status, in combination, can constitute special circumstances justifying a non-parole period below the statutory minimum of three-quarters of the head sentence under the then-applicable section 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Continuing to assert factual innocence after conviction, including to probation officers and the sentencing court, was treated as evidence negating remorse and was weighed against the appellant in sentencing.
  • Statistical evidence from the Judicial Commission was relevant to demonstrating that young, first-time drug supply offenders represent a comparatively small cohort, which the Court of Criminal Appeal acknowledged as a factor supporting individualised sentencing treatment.
  • In dismissing the original sentence as manifestly excessive, the Court of Criminal Appeal nonetheless confirmed that full-time imprisonment remained the appropriate form of sentence for deemed supply of a significant quantity of methylamphetamine, even for a youthful first offender.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases:
- Regina v Juliano Romy Bardo, unreported, NSWCCA, 14 July 1992
- R v Bishop, unreported, NSWCCA, 23 September 1996
- R v Bloomfield (1998) 44 NSWLR 734; NSWCCA, 15 July 1998
- R v Clark, unreported, NSWCCA, 15 March 1990
- R v Garvie, unreported, NSWCCA, 24 March 1997
- R v Goldsworthy, unreported, NSWCCA, 22 May 1996
- R v Ozer, unreported, NSWCCA, 9 November 1993