AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 20 May 2005

REGINA v. SAMA

[2005] NSWCCA 191

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ONGOING SUPPLY OF PROHIBITED DRUGS LIMITED DISCOUNT FOR PLEA OF GUILTY STRENGTH OF THE CROWN CASE UTILITARIAN VALUE OF THE PLEA OF GUILTY

Citation: Regina v Sama [2005] NSWCCA 191
Court: Court of Criminal Appeal, New South Wales
Date: 20 May 2005
Judges: James J, Hislop J, Hall J

Background

The appellant was convicted on a plea of guilty to one count of ongoing supply of a prohibited drug under s 25A of the Drug (Misuse and Trafficking) Act 1985. The three individual supplies, all occurring on 22 July 2003 in the vicinity of Crescent Park, Fairfield, involved methadone and two very small quantities of heroin. All three transactions were made to undercover police operatives.

The District Court sentenced the appellant to 30 months imprisonment with a non-parole period of 15 months. The appellant was 31 years old at the time of the offence and had prior convictions for possessing prohibited drugs.

The appellant sought leave to appeal against the sentence in the Court of Criminal Appeal, advancing three grounds: that the sentencing judge gave an improperly limited discount for the guilty plea; that the judge erred in treating the offending as a planned rather than opportunistic activity; and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by limiting the discount for the guilty plea on the basis of the strength of the Crown case, when that factor is only relevant to contrition and not to the utilitarian value of the plea
  • Whether the judge incorrectly characterised the offending as planned activity rather than opportunistic crime
  • Whether the total sentence of 30 months imprisonment with a 15-month non-parole period was manifestly excessive, given the small quantities of drugs involved

Decision

On the first ground, the Court accepted that the sentencing judge's stated approach was arguably erroneous. Established authority, including Thomson and Houlton, makes clear that the strength of the Crown case is relevant only to the assessment of contrition and remorse, not to the utilitarian value of a guilty plea. The judge's remarks left open the interpretation that he had improperly discounted the utilitarian benefit of the plea by reference to the Crown's strong case.

On the second ground, the Court found the characterisation of the offending as planned rather than opportunistic was well supported by the facts. Three separate supplies occurred on the same day over a period of roughly four hours. The appellant was present in the area with drugs available for sale and actively facilitated each transaction, including offering practical advice to one operative on how to conceal drugs from police.

On the third ground, the Court emphasised that the gravamen of an ongoing supply offence under s 25A is the fact of ongoing supply itself, not the quantity involved. While the heroin quantities were very small, the maximum penalty of 20 years imprisonment reflects the legislature's view of the seriousness of the offence. The Court accepted the sentencing statistics relied upon by the appellant but found they did not displace the overall sentencing exercise.

Notwithstanding the identified error on the first ground, the Court declined to intervene. Taking into account all relevant factual and subjective matters, Hall J concluded that the error did not warrant disturbing the sentence, which remained within the proper range of the sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the strength of the Crown case is irrelevant to the utilitarian value of a guilty plea. That factor bears only on contrition and remorse, following Thomson and Houlton and subsequent authorities.
  • A sentencing error does not automatically lead to resentencing. Even where an error is identified, the appellate court will decline to intervene if the sentence imposed nevertheless falls within the proper exercise of the sentencing discretion.
  • Under s 25A of the Drug (Misuse and Trafficking) Act 1985, the gravamen of the offence is the fact of ongoing supply, not the quantity of drug supplied. Small quantities do not of themselves reduce the seriousness of the charge.
  • Characterising offending as planned rather than opportunistic turns on the circumstances in fact. Repeated drug sales conducted across a defined area over several hours, with drugs on hand and techniques to conceal them from police, supported a finding of planned activity.
  • In dismissing the appeal, the Court applied a well-established principle that sentence statistics are a relevant but not determinative consideration in assessing whether a sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25A

Cases:
- Regina v Thomson and Houlton (2000) 49 NSWLR 386
- Regina v Carter [2001] NSWCCA 245
- Regina v Sutton [2004] NSWCCA 225
- Regina v Tran [2004] NSWCCA 366
- Regina v CBK (2002) 135 A Crim R 260
- Smiroldo (2000) 112 A Crim R 47
- Mandica (1980) 4 A Crim R 34