Citation: Regina v Gidaro [2005] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 7 February 2005
Judges: Bell J (with Grove J and Hidden J agreeing)
Background
The applicant, a 25-year-old man with a minor prior criminal record, was stopped by police while driving in Croydon in October 2002. A search uncovered quantities of ecstasy tablets, amphetamine tablets, cannabis, heroin, and methylamphetamine on his person, along with $1,270 in cash. He had no meaningful source of income beyond a fortnightly Newstart allowance.
The applicant pleaded guilty on arraignment in the District Court to two counts of supplying a prohibited drug (ecstasy and amphetamines respectively) in amounts not less than the trafficable quantity, contrary to section 25 of the Drug Misuse and Trafficking Act 1985. Three further possession offences were taken into account on a Form 1. The maximum penalty for each supply offence was 15 years' imprisonment.
Judge Shillington DCJ sentenced the applicant to three years' imprisonment with a non-parole period of 18 months on each count, to be served concurrently from 2 April 2004. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the sentences of three years' imprisonment with an 18-month non-parole period were manifestly excessive in all the circumstances.
- Whether the relatively small quantities of drugs involved and the finding that the applicant was a user-supplier drove by addiction warranted a lesser sentence.
- Whether the sentences fell outside the proper range of sentencing discretion having regard to comparable cases.
Decision
The applicant's core submission was that the small quantities involved and the judge's finding that drug dealing was directed toward satisfying his own addiction reduced the seriousness of the offences. The Court acknowledged this principle, referencing R v Selim, which recognised that addiction-driven dealing can be a mitigating factor.
The Court reviewed a table of comparable sentences and accepted that the present sentences sat at the higher end of the range for offences of this type. However, it also emphasised that comparative tables must be used with care, as each case turns on its own facts. The Court distinguished the cases relied upon by the applicant: R v Maessen turned on the absence of evidence of a continuing trade, and R v Mason involved an error in the stated maximum penalty.
The Court found that the sentencing judge had been entitled to place significant weight on personal deterrence. The applicant had failed to engage with the Probation and Parole Service, had continued using illicit substances, had tested positive to drug use since an earlier pre-sentence report, and had been assessed as unsuitable for community-based orders due to unreliability and unresolved drug issues. His prospects of rehabilitation were, at best, guarded.
Weighing those factors, and noting that the applicant had been supplying drugs for profit even if also as a user, the Court concluded the sentences did not exceed the bounds of sentencing discretion. Leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A finding that an offender is a user-supplier motivated by addiction is a mitigating factor in sentencing, but it does not automatically reduce sentences to the lower end of the range where other aggravating circumstances are present.
- Personal deterrence can properly be accorded significant weight where an offender has demonstrated ongoing drug use, non-compliance with supervision, and poor rehabilitation prospects.
- Comparative sentencing tables are a useful reference point, but the Court of Criminal Appeal confirmed that each case must be assessed on its own facts and that differences in circumstances between cases can be decisive.
- In dismissing the appeal, the Court drew a clear distinction between sentences that are merely severe and sentences that exceed the proper bounds of judicial discretion; only the latter warrants appellate intervention.
- No error was established in the sentencing judge's failure to quantify the discount for early guilty pleas, given the judge expressly acknowledged the entitlement to a substantial discount on arraignment.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(c), 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
Cases:
- R v Maessen [2004] NSWCCA 160
- R v Mason (unreported, 22 March 2000)
- R v Selim (unreported, 19 May 1998)