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Court of Criminal Appeal 20 December 2004

Regina v Ronald Steven LILLEY

[2004] NSWCCA 424

Also reported as 150 A Crim R 591
Drugs

Citation: Regina v Ronald Steven LILLEY [2004] NSWCCA 424
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judge(s): Santow JA, Bell J, Howie J

Background

The respondent, a 52-year-old man with an extensive criminal history dating back to 1968, pleaded guilty in the Sydney District Court to supplying heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Police executing search warrants found seven ounces of heroin in a sports bag in the boot of a vehicle he had been travelling in, along with electronic scales, resealable bags, and $1,560 in cash. The respondent told police he had obtained the heroin on credit and intended to sell it to repay that debt and fund his own heroin habit.

The District Court judge sentenced the respondent to two years and six months' imprisonment with a non-parole period of 21 months. The Crown appealed, contending that sentence was manifestly inadequate given the quantity of drugs involved and the respondent's significant prior history of drug supply offences, including a prior Crown appeal that had already resulted in an increased sentence for similar conduct.

  • Whether the sentence imposed by the District Court was manifestly inadequate having regard to the quantity of heroin, the respondent's criminal history, and the applicable standard minimum sentencing regime.
  • Whether the District Court correctly applied the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999, as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002.
  • Whether the District Court gave proper weight to the respondent's prior convictions, including a previous successful Crown appeal in relation to heroin supply offences, as an aggravating factor.
  • What sentence should be substituted on re-sentencing, taking into account both aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Bell J (with whom Santow JA and Howie J agreed) found that the sentence imposed by the District Court was manifestly inadequate. The combination of the quantity of heroin involved, which attracted a standard non-parole period under the amended sentencing legislation, and the respondent's serious prior record for drug supply offences required a substantially heavier sentence than the one imposed.

The Court found that the District Court had erred in its application of the standard non-parole period provisions. The offence fell within the category attracting a standard non-parole period, and there was no sufficient basis demonstrated to justify departing downward to the extent reflected in the sentence imposed. The respondent's prior history was a material aggravating factor requiring particular weight to be given to personal deterrence.

On re-sentencing, the Court applied a 25 percent discount to reflect the utilitarian value of the guilty plea and the respondent's remorse, which the District Court judge had accepted. The Court also extended the benefit of the finding of special circumstances (justifying a departure from the standard ratio between the non-parole period and the balance of term) in light of the respondent's need for supervision upon release, although Bell J noted some reservations about that conclusion. Because the re-sentencing arose from a successful Crown appeal, the Court imposed a sentence described as sitting at the low end of the range appropriate for the circumstances.

Orders Made

  • The appeal was allowed and the sentence imposed in the District Court was quashed.
  • A non-parole period of three years and nine months was imposed, commencing 19 February 2004 and expiring 18 November 2007.
  • The balance of the term was set at two years and three months, with the full sentence expiring 18 February 2010.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence for heroin supply must reflect both the standard non-parole period regime introduced by the 2002 amendments and the weight of a respondent's prior record for comparable offending.
  • A prior successful Crown appeal against leniency for related drug supply offending is a significant aggravating consideration, reinforcing the need for personal deterrence in re-sentencing.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, prior convictions are an aggravating factor that can displace what might otherwise be a more lenient sentencing outcome, particularly where the offending history is extensive and directly analogous.
  • Where re-sentencing follows a successful Crown appeal, the Court of Criminal Appeal will impose a sentence at the lower end of the appropriate range as a matter of principle, reflecting the double jeopardy consideration applicable to Crown appeals.
  • A 25 percent discount for a guilty plea and demonstrated remorse remained available on re-sentencing, even where the overall sentence was substantially increased from that originally imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases:
- Devries v Australian National Railways Commission (1993) 177 CLR 472
- State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
- R v Clark (unreported, Court of Criminal Appeal, 15 March 1990)
- R v Bernath [1997] 1 VR 271
- R v Johnson [2004] NSWCCA 76
- R v Osenkowski (1982) 30 SASR 212
- R v Pilley (1991) 56 A Crim R 202
- R v Veen [No 2] (1988) 164 CLR 465
- R v Wickham [2004] NSWCCA 193