Citation: Regina v Hughes [2005] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 20 June 2005
Judge(s): Spigelman CJ; Hunt AJA; Howie J
Background
The applicant pleaded guilty in the Newcastle District Court to two charges: supplying heroin and knowingly taking part in the supply of methylamphetamine. Police found 12.9 grams of heroin and 6.68 grams of methylamphetamine in his possession. Both charges were based on "deemed supply," a legal principle under which possession of a quantity of drugs above a statutory threshold is treated as supply, regardless of the holder's stated intentions.
The applicant was 44 at the time of sentencing and had a mixed criminal history. His record included minor offences in earlier years, a conviction for conspiracy to commit armed robbery in 1998 (for which he received six years), and more recent convictions for possessing methylamphetamine. He had been released on parole and committed the present offences while still subject to that parole.
The sentencing judge accepted the applicant's evidence that the heroin was for his own use and that of his de facto wife, and that he intended to sell the methylamphetamine only to fund the heroin purchase. This was described as a "need not greed" basis for the supply. The judge imposed a total effective sentence of 52 months with a non-parole period of 33 months, four months more than the 48 months proposed by the applicant's counsel at sentencing.
Legal Issues
- Whether the sentence imposed for supplying methylamphetamine was excessive in all the circumstances
- Whether sufficient weight was given to mitigating factors, including the applicant's long-standing heroin addiction and the "need not greed" basis of the methylamphetamine supply
- Whether the two sentences should have been served with a greater degree of concurrency, given both offences occurred at the same time
- Whether the applicant's sentence was disproportionate compared to the sentence imposed on his de facto wife
- Whether the sentencing judge was affected by bias from earlier proceedings involving the de facto wife
Decision
The Court of Criminal Appeal rejected each of the applicant's grounds and refused leave to appeal. Hunt AJA, with whom Spigelman CJ and Howie J agreed, found that the sentencing judge had properly considered all relevant mitigating factors, including the late stage of the parole period at which the offending occurred. However, committing offences while on parole remains a significant aggravating factor regardless of how much of the parole period passed without incident beforehand.
On the "need not greed" argument, the Court noted that the sentencing judge had accepted this factual basis and that it operated in the applicant's favour. His addiction to heroin was not, however, treated as a mitigating factor in itself. The judge's acceptance of his evidence on the purpose of the sale was itself a substantial concession in his favour.
The Court found no error in the degree of accumulation applied to the two sentences. Offences committed simultaneously do not automatically attract full concurrency, and each sentence must reflect its own objective seriousness. The Court also rejected the disparity argument concerning the de facto wife's sentence, noting that the two cases differed substantially in the quantity and purity of drugs involved, as well as the offenders' respective criminal histories.
On the allegation of judicial bias, the Court found the judge's conduct at the sentencing hearing demonstrated the opposite: she expressed initial doubt about accepting the "need not greed" basis and was ultimately persuaded only by the applicant's own evidence. That process was inconsistent with any suggestion of bias against him.
Orders Made
- Leave to appeal refused
Key Takeaways
- Committing offences while on parole is treated as a significant aggravating factor in sentencing, regardless of whether the offending occurs early or late in the parole period.
- Acceptance of a "need not greed" basis for drug supply (that is, selling one drug to fund personal use of another) can operate in a defendant's favour at sentencing, but does not eliminate the objective seriousness of the supply offence.
- A long-standing addiction to heroin does not of itself constitute a mitigating factor, though a sentencing court may take it into account when assessing the context of the offending.
- No error was established in the sentencing judge's accumulation of the two sentences; simultaneous offending does not automatically require wholly concurrent sentences.
- In dismissing the disparity argument, the Court confirmed that comparison between co-offenders' sentences requires close examination of the individual circumstances of each case, including criminal history and the nature and quantity of drugs involved.
Legislation and Cases Referenced
Legislation:
The decision does not expressly cite specific legislative provisions in the portions of the judgment provided. The charges relied on the deemed supply provisions under New South Wales drug legislation (the applicable statute is not named in the text).
Cases:
No cases are cited in the portions of the judgment provided.