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Court of Criminal Appeal 8 December 2004

Regina v Nasr

[2004] NSWCCA 441

Drugs
CRIMINAL LAW: SENTENCING WHETHER SENTENCE MANIFESTLY INADEQUATE OBJECTIVE GRAVITY OF OFFENCES MEMBER OF DRUG SUPPLYING SYNDICATE

Citation: Regina v Nasr [2004] NSWCCA 441
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judges: Tobias JA, Sully J, Hoeben J

Background

The respondent pleaded guilty in the District Court to three drug supply offences under the Drug Misuse and Trafficking Act 1985: ongoing supply of methylamphetamine, supply of methylamphetamine, and supply of cannabis. The offences related to his participation in a well-organised drug dealing syndicate operating out of premises in Ashfield, which used coded mobile telephone orders and "runners" to supply drugs in the local area, receiving between 75 and 200 calls per day.

The respondent was not a ringleader. The sentencing judge found he had no capacity to control the operation, distinguishing him from four co-offenders who played more prominent roles. However, he was aware of all facets of the operation and participated in actual supplies, including to undercover police officers on multiple occasions.

At first instance, Phegan DCJ sentenced the respondent to concurrent terms of three years with a one year and eight month non-parole period for Counts 1 and 2, and 18 months for Count 3, all to be served by way of periodic detention. The Director of Public Prosecutions appealed, arguing those sentences were manifestly inadequate.

  • Whether the sentences imposed were manifestly inadequate given the objective seriousness of the offences
  • Whether the sentencing judge gave too much weight to the respondent's prospects of rehabilitation at the expense of general deterrence and denunciation
  • Whether periodic detention was an appropriate sentencing disposition for an offender involved in a serious, systematic drug supply syndicate

Decision

The Court of Criminal Appeal allowed the appeal, finding the original sentences manifestly inadequate. Hoeben J (with Tobias JA and Sully J agreeing) held that the objective gravity of the offences, their duration, and the organised syndicate context demanded a sentence that meaningfully reflected general deterrence and denunciation. Allowing the sentences to stand, in his Honour's view, would bring the criminal justice system into disrepute.

The court accepted that the respondent's rehabilitation prospects were genuine and compelling. Over roughly 20 months since the offending, the respondent had demonstrated sustained and credible efforts to rehabilitate. However, those subjective factors did not outweigh the need to mark the seriousness of sustained, systematic drug supply through organised criminal enterprise.

The court acknowledged the particular harshness of re-sentencing an offender who had been living under the uncertainty of a Crown appeal, citing the principle from R v Hernando (2002) 136 ACrimR 451. Despite that consideration, fulltime imprisonment was required. A 25 percent discount was applied for the early guilty plea, and the non-parole period was fixed generously at one year to reflect the strong rehabilitation evidence. The sentence was backdated to 1 July 2004, accounting for 130 days already served in custody in 2002 and 12 weeks of periodic detention already completed.

Orders Made

  • Crown appeal allowed
  • Sentences for Counts 1 and 2 quashed; respondent re-sentenced to concurrent terms of 2 years and 3 months imprisonment with a non-parole period of 1 year, commencing 1 July 2004 and expiring 30 June 2005; parole period to run from 1 July 2005 to 30 September 2006
  • Sentence for Count 3 quashed; respondent re-sentenced to a fixed term of 1 year imprisonment, commencing 1 July 2004 and expiring 30 June 2005
  • Respondent directed to be released to parole on 30 June 2005

Key Takeaways

  • Participation in a systematic, profit-driven drug supply syndicate carries a high level of objective seriousness that demands sentences reflecting general deterrence and denunciation, even where the offender is not a leading figure in the enterprise.
  • Compelling rehabilitation evidence can justify a more generous non-parole period but does not, by itself, justify a sentence form (such as periodic detention) that fails to adequately reflect the gravity of organised drug supply offending.
  • A 25 percent sentencing discount for an early guilty plea was applied consistently with established principle, reducing the head sentence from 3 years to 2 years and 3 months.
  • The Court of Criminal Appeal confirmed the principle from R v Hernando that re-sentencing on a Crown appeal can operate harshly on an offender who has been living with uncertainty, though this consideration does not override the need for an adequate sentence.
  • Backdating the sentence to account for pre-sentence custody and completed periodic detention reflects the court's approach to ensuring the total period served corresponds fairly to what the sentence requires.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1), 32(1)(g), 32(1)(h)

Cases:
- R v Hernando (2002) 136 ACrimR 451
- R v KM & Ors [2004] NSWCCA 65
- R v Leslie (1991) 55 ACrimR 68
- R v Day (unreported, NSWCCA, 23 April 1998)
- R v Niga (unreported, NSWCCA, 30 April 1994)