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Court of Criminal Appeal 6 December 2004

Regina v Hansel

[2004] NSWCCA 436

Drugs

Citation: Regina v Hansel [2004] NSWCCA 436
Court: NSW Court of Criminal Appeal
Date: 6 December 2004
Judge(s): Sully J, Hidden J, Howie J

Background

The respondent, a man aged just under 60 at the time of sentencing, pleaded guilty to two counts of knowingly taking part in the manufacture of a commercial quantity of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a police investigation into a drug manufacturing operation centred on a property at Riverstone leased by the respondent. Police observed the respondent and a co-accused at the premises, intercepted relevant phone calls, and recovered significant quantities of methylamphetamine and manufacturing equipment.

The respondent was sentenced in the District Court by Woods DCJ on 14 May 2004. On each count, his Honour imposed 12 months imprisonment with a nine-month non-parole period, but then wholly suspended both sentences on conditions. The statutory maximum for each offence was 20 years imprisonment.

The Crown appealed under section 5D of the Criminal Appeal Act 1912 (NSW), contending the sentences were manifestly inadequate given the serious objective criminality involved in manufacturing commercial quantities of a prohibited drug.

  • Whether the sentences imposed by Woods DCJ were manifestly inadequate given the nature and scale of the offending.
  • Whether, even if manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to interfere with the sentences in the particular circumstances of the respondent.

Decision

The Court of Criminal Appeal unanimously agreed the sentences were manifestly inadequate. The offending involved participation in the manufacture of two separate lots of methylamphetamine, each at commercial quantity, with a maximum penalty of 20 years imprisonment. The objective seriousness of the conduct called for a significantly heavier sentence.

However, the sentencing judge had placed considerable weight on a powerful subjective case. This included the respondent's significant mental health background, which his Honour found had very substantially mitigated the respondent's moral responsibility, as well as his age and the fact that he was "easily led" in a genuine sense. Woods DCJ also noted the respondent's deep remorse and his role in caring for elderly parents in their mid-eighties.

Critically, the respondent's cardiac condition was severe. The medical evidence from his treating cardiologist indicated that the respondent's lipid profile remained uncontrolled, that his condition was causing significant fatigue requiring regular rest, and that he remained at ongoing risk, requiring close medical monitoring for long-term survival. Sully J held that to now impose full-time custody on a person with those health conditions would constitute an unacceptably harsh correction, even of a primary sentencing exercise that had seriously miscarried.

Sully J frankly acknowledged reluctance to refuse the Crown appeal purely on discretionary grounds, noting that doing so risked encouraging inadequate sentencing at first instance. Nevertheless, the settled principle that genuine apprehension of that outcome cannot override what justice demands in the particular case prevailed. Hidden J agreed the sentence was manifestly inadequate but concurred the appeal should be dismissed on discretionary grounds. Howie J agreed with Sully J.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of manifest inadequacy does not automatically result in resentencing: the court retains a residual discretion to decline to intervene where the particular circumstances of the offender make correction unjust.
  • Severe and uncontrolled medical conditions can, in appropriate cases, be a decisive factor in the exercise of that residual discretion, even where the objective seriousness of the offending is high.
  • In dismissing the appeal, the Court distinguished its earlier decision in Reg v McGourty [2002] NSWCCA 335 on the basis that the respondent's subjective case was considerably stronger and the offending did not involve serious violence.
  • A genuine finding that an offender's mental state and vulnerability substantially reduced their moral responsibility can provide proper sentencing mitigation, even where the objective features of drug manufacturing at a commercial scale are grave.
  • Under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty for manufacturing a commercial quantity of a prohibited drug is 20 years imprisonment, reflecting the legislature's view of the seriousness of such offending.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Reg v Burrell [2000] NSWCCA 262
- Reg v McGourty [2002] NSWCCA 335