Citation: Regina v Abdul-Kader [2005] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 1 June 2005
Judge(s): Howie J, Studdert J, Latham J
Background
The applicant was convicted by a jury of supplying methylamphetamine contrary to s 25 of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum of 15 years' imprisonment. The conviction arose from an incident in June 2003 when police, executing a search warrant at a hotel room where a party had been held, observed the applicant throw a plastic bag to the floor. The bag was found to contain 27.9 grams of methylamphetamine at almost 80 per cent purity, with a street value of approximately $13,950.
The District Court sentenced the applicant to 2 years and 8 months' imprisonment, comprising a non-parole period of 20 months. A finding of special circumstances was made. The applicant was 21 at the time of sentencing, had no prior drug convictions, and had experienced significant personal hardship including the death of his mother when he was 16.
The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive. He did not appeal the separate sentence for possessing a small quantity of cannabis.
Legal Issues
- Whether the sentencing judge erred by finding that the methylamphetamine was not intended merely for gratuitous supply to friends at the party, given that no scales or other typical indicia of commercial dealing were found.
- Whether the overall sentence of 2 years and 8 months was manifestly excessive in all the circumstances.
Decision
The court rejected the argument that the sentencing judge had erred in refusing to find gratuitous supply. The court noted that the applicant had maintained throughout that he was not in possession of the drug at all, and had not given evidence on sentence. That position left him poorly placed to establish, on the balance of probabilities, that any intended supply was gratuitous. The sentencing judge's conclusion was simply that a potentially mitigating factor had not been proven, and that finding was open given the drug's high purity, its significant street value, the presence of resealable plastic bags, and the applicant's denial that he used methylamphetamine.
The court emphasised the objective seriousness of the offence independently of the gratuitous supply question. The applicant possessed nearly ten times the trafficable quantity of high-purity amphetamine, and the potential for harm to the community was considerable. General deterrence was identified as an important, if not the most important, sentencing consideration for drug supply offences of this kind.
On the subjective side, the court found little significant mitigation beyond the applicant's age. His criminal record, his failure to accept responsibility, and the limited weight available to his expressions of contrition all restricted the scope for a more lenient approach. The aggravating factor of offending while on conditional liberty was also present.
The Court of Criminal Appeal concluded the sentence was well within the sentencing judge's discretion and was not manifestly excessive.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an applicant who maintains complete denial of possession is in a difficult position when later seeking to establish, on sentence, that a mitigating factor such as gratuitous supply applies.
- The onus rests on the offender to establish on the balance of probabilities that intended supply was gratuitous; a bare submission unsupported by evidence is unlikely to satisfy that onus.
- High purity, significant street value, and the presence of resealable bags were sufficient to support a finding that supply was not merely for the benefit of persons at a private gathering, even without scales or other commercial dealing paraphernalia.
- Under s 25 of the Drug Misuse and Trafficking Act 1985, general deterrence is a weighty consideration in sentencing for drug supply, and a sentence near the lower end of the range is not automatically warranted by youth or personal hardship.
- Offending while subject to conditional liberty remains an aggravating factor that limits the scope for a more lenient sentence.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases:
- R v Clarke (NSWCCA, 15 March 1990, unreported)