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Court of Criminal Appeal 29 August 2005

R v Nimmo

[2005] NSWCCA 295

Drugs

Citation: R v Nimmo [2005] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 29 August 2005
Judge(s): Spigelman CJ, Ipp JA, Adams J

Background

The appellant was convicted of supplying a prohibited drug on an ongoing basis, specifically crystalline methylamphetamine, on eleven separate occasions across a thirty-day period in April 2003. The offence fell under the Drug Misuse and Trafficking Act 1985 (NSW), which targets repeated supply for financial or material reward. Police also found over 63 grams of the drug at his residence, along with scales and other paraphernalia.

Knight DCJ in the District Court sentenced the appellant to three years and four months imprisonment, with a non-parole period of two and a half years. The judge assessed the offence as falling in the middle range of criminality for this type of offence, applied a one-third discount for the early guilty plea and remorse, and identified several aggravating factors including that the offending occurred while the appellant was on a good behaviour bond.

The appellant sought leave to appeal against the sentence on three grounds: that the starting point was too high, that insufficient weight was given to special circumstances warranting a longer parole period, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's starting point was too high given his finding on objective seriousness
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that justified a longer than usual parole period
  • Whether the sentence was manifestly excessive overall

Decision

Ipp JA, writing the principal judgment, dismissed the first ground as circular. The appellant had not identified any explicit starting point in the sentencing remarks; rather, he sought to infer one from the sentence itself. That reasoning, Ipp JA held, depended entirely on the validity of the other two grounds.

On the question of special circumstances, the appellant pointed to his relative youth, his lack of prior imprisonment, his drug addiction as a partial motivation for supply, and his reasonable rehabilitation prospects. Ipp JA acknowledged these factors but held that the non-parole period must still reflect the objective gravity of the offence and the need for general deterrence, as confirmed in R v Simpson (2001) 53 NSWLR 704. Given the judge's unchallenged finding that the offence sat in the middle range of seriousness, the non-parole period was not shown to be wrong in principle.

On manifest excess, Ipp JA found the sentencing reasoning to be unexceptionable. No error of principle was identified. While Adams J noted some concern about the prominence given to the drugs found during the search, and whether the sentencing judge may have inadvertently sentenced the appellant partly for those uncharged matters, he ultimately concluded he could not find that the starting point was outside the proper sentencing range. Adams J was also troubled by the finding on special circumstances but declined to conclude the judge erred in the exercise of his discretion.

The Court granted leave to appeal but dismissed the appeal, with all three judges agreeing the sentence should stand.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period must still reflect the objective seriousness of the offence and the need for general deterrence, even where mitigating factors such as youth, absence of prior imprisonment, and addiction are present.
  • A ground of appeal asserting an excessive starting point will be treated as circular where no starting point was explicitly identified in the sentencing remarks and the argument depends on the same reasoning as the manifest excess ground.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances must be weighed against the criminality of the offence, not simply established by the presence of favourable personal factors.
  • Where a sentencing judge applies an unchallenged finding that an offence falls in the middle range of seriousness, that finding carries significant weight in assessing whether the resulting sentence is proportionate.
  • Sentencing material relating to drugs found during a search may legitimately inform assessments of the organised nature of offending, deterrence, and rehabilitation, even where those drugs do not form the basis of any separate charge, provided the material is not used to sentence the offender for uncharged conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(3), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases
- R v Simpson (2001) 53 NSWLR 704
- R v Fidow [2004] NSWCA 172