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Court of Criminal Appeal 29 April 2005

R v PRESTON

[2005] NSWCCA 177

DrugsFirearms & weapons

Citation: R v Preston [2005] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 29 April 2005
Judge(s): Hunt AJA, Hulme J, Johnson J

Background

The respondent was convicted on five counts following a police undercover operation. The first count involved offering to sell a 9mm Beretta pistol, an offence under the Firearms Act 1996. The remaining four counts involved ongoing supply of heroin on multiple occasions across consecutive monthly periods between June and September 2003, contrary to s 25A of the Drug Misuse and Trafficking Act.

In the District Court, Judge Dodd sentenced the respondent to an effective term of 5.5 years with a non-parole period of two years. The sentences reflected a 25% discount for guilty pleas. The respondent was in his mid-fifties, had prior drug-related convictions, had commenced heroin use after a motorcycle accident, and was assessed as remorseful and drug-free at the time of sentencing.

The Crown appealed on the ground that the sentences were manifestly inadequate, particularly given that the effective non-parole period of two years failed to reflect the seriousness of four counts each carrying a maximum of 20 years imprisonment.

  • Whether the effective non-parole period of two years was manifestly inadequate for four counts of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act, each carrying a maximum of 20 years.
  • Whether the sentencing judge erred in structuring the sentences so that the heroin supply offences added only six months to the non-parole period imposed for the firearms offence.
  • Whether the form of the s 25A charges (referencing "three separate occasions" rather than "3 or more") affected the sentencing proceedings or the approach the Court of Criminal Appeal should take on appeal.

Decision

Hulme J (with Hunt AJA and Johnson J agreeing) found that the sentencing structure was fundamentally flawed. The effective non-parole period for the four ongoing supply counts amounted to only six months' additional custody beyond the firearms sentence. That outcome bore no proper relationship to the gravity of offences carrying a maximum of 20 years each.

The Court accepted the mitigating features found by Judge Dodd, including the respondent's remorse, drug-free status, rehabilitation prospects, guilty pleas, and the finding that he made no profit beyond sustaining his own and his partner's habits. Hulme J noted some personal doubt about the no-profit finding but did not disturb it as the Crown had not challenged it on appeal.

On the s 25A charging issue, the Court noted that the charges referred to "three separate occasions" rather than tracking the statutory language of "3 or more separate occasions." The Court observed that this could have required the Crown to identify only three occasions per period, leaving others to be addressed by separate charges. However, given the matter had proceeded on the basis it did below, the Court of Criminal Appeal continued on the same footing, while signalling that future charges should mirror the statutory language.

Applying the principle of totality, the Court restructured the sentences by staggering the commencement of non-parole periods across the four supply counts at ten-monthly intervals. This produced an effective minimum non-parole period of four years for the supply offences, which the Court considered the appropriate minimum in the circumstances.

Orders Made

  • Appeal allowed.
  • Sentence on count 1 (firearms offence) confirmed.
  • Sentences on counts 2 to 5 quashed and replaced as follows:
  • Count 2: non-parole period of 18 months from 9 April 2004, balance of term 3 years 6 months from 9 October 2005.
  • Count 3: non-parole period of 18 months from 9 February 2005, balance of term 3 years 6 months from 9 August 2006.
  • Count 4: non-parole period of 18 months from 9 December 2005, balance of term 3 years 6 months from 9 June 2007.
  • Count 5: non-parole period of 18 months from 9 October 2006, balance of term 2 years 8 months from 9 April 2008.
  • Eligible parole date recorded as 9 April 2008.

Key Takeaways

  • A sentence structure that effectively adds only six months to a non-parole period across four counts each carrying a maximum of 20 years is likely to be manifestly inadequate, even where significant mitigating factors are present.
  • The Court of Criminal Appeal confirmed that mitigating factors, including remorse, drug-free status, rehabilitation prospects, and a utilitarian guilty plea discount, do not on their own justify a non-parole period that fails to reflect the objective gravity of serious drug supply offending.
  • Under s 25A of the Drug Misuse and Trafficking Act, charges framed as "three separate occasions" rather than "3 or more separate occasions" (the statutory language) may limit the Crown's reliance on the full volume of supply, and future charges should track the statutory wording precisely.
  • Staggering non-parole periods across multiple counts is an available structural mechanism for achieving an appropriate effective minimum period of custody while respecting the totality principle.
  • Where a Crown appeal does not challenge a factual finding made by the sentencing judge, the Court of Criminal Appeal will proceed on the basis of that finding even if individual judges express reservations about it.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 51(1); s 4 (definition of "sell" to include offer for sale and negotiations)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of prohibited drug)
- Criminal Appeal Act 1912 (NSW), s 7

Cases: No specific cases were cited in the portions of the judgment provided.