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Court of Criminal Appeal 31 March 2005

Regina v Brett Raymond Walker

[2005] NSWCCA 109

Drugs
SENTENCING SUPPLYING PROHIBITED DRUGS APPROPRIATE SENTENCE AND NON PAROLE PERIOD.

Citation: Regina v Brett Raymond Walker [2005] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 31 March 2005
Judge(s): Giles JA, Hoeben J, Johnson J

Background

The applicant was a 39-year-old man found in possession of multiple prohibited drugs in Forster, NSW, in June 2003. Police discovered ecstasy tablets, methylamphetamine, cannabis, and cannabis oil on his person and at his premises, along with over $4,000 in cash and a mobile phone containing messages consistent with drug supply activity. He was charged with two counts of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985.

In the District Court at Taree, Coolahan DCJ sentenced the applicant to a non-parole period of two years (with an 18-month balance of sentence) on the ecstasy supply count, and a concurrent fixed term of 18 months on the cannabis oil supply count. The sentencing judge found that the applicant was "in the business of supplying drugs for profit" and rejected much of the applicant's evidence as implausible.

The applicant sought leave to appeal, arguing that the sentences were manifestly excessive and that the sentencing judge had impermissibly used his prior criminal record as an aggravating factor rather than treating it only as relevant context.

  • Whether the sentencing judge impermissibly used the applicant's prior criminal record as an aggravating factor, beyond its legitimate role in setting the upper boundary of appropriate punishment
  • Whether insufficient weight was given to subjective mitigating factors, including guilty pleas, prospects of rehabilitation, mature age, and the more onerous conditions of protective custody
  • Whether the sentences imposed were within the appropriate range for the offences

Decision

The Court of Criminal Appeal, with Johnson J delivering the principal judgment (Giles JA and Hoeben J agreeing), dismissed the appeal. The court found no error in the sentencing judge's approach to the applicant's prior criminal record.

On the criminal record issue, the court acknowledged the principle drawn from Veen v The Queen (No. 2) that a sentence must not be increased beyond what is proportionate to the current offence merely because of past criminality. However, the court found that the sentencing judge had used the prior record legitimately. The applicant's history of drug supply offences was relevant to understanding the objective seriousness of the current conduct, particularly in supporting the finding that these were not isolated offences but part of ongoing drug supply activity.

The court also rejected the argument that the sentencing judge had given insufficient weight to the subjective case. It was satisfied that the judge had considered the guilty pleas, prospects of rehabilitation, protective custody conditions, and the finding of special circumstances. The wholly concurrent sentences were noted as being favourable to the applicant.

The court concluded that the sentences imposed were well within the appropriate range. Even if some error had been demonstrated, the court indicated it would not have intervened because no lesser sentence was warranted in law under s.6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court does not impermissibly use a prior criminal record as an aggravating factor simply by treating it as context that informs the objective seriousness of current offending, provided the sentence remains proportionate to the offences actually before the court.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding that an offender was "in the business of supplying drugs for profit" can properly be supported by the broader factual matrix, including prior drug supply history, surveillance observations, cash holdings, and mobile phone communications, rather than being limited to the quantity and street value of drugs found.
  • Offences on a Form 1 (additional matters taken into account on sentencing) can legitimately support the imposition of a longer sentence on the principal count.
  • Wholly concurrent sentences across counts involving different prohibited drugs are not automatically an error; in this case they were characterised as favourable to the applicant.
  • Under s.6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may decline to intervene even where some error is identified, if no lesser sentence is warranted in law.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 32(1)(c) and (g)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v Johnson [2004] NSWCCA 76
- R v Wickham [2004] NSWCCA 193
- R v Shankley [2003] NSWCCA 253
- R v Berg [2004] NSWCCA 300
- Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146