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Court of Criminal Appeal 22 September 2005

Regina v Schumacher

[2005] NSWCCA 335

Drugs
SENTENCE NOT EXCESSIVE

Citation: Regina v Schumacher [2005] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 22 September 2005
Judges: Grove J, Hall J, Smart AJ

Background

The appellant was convicted of supplying methylamphetamine across a period from March to September 2001. The supply involved multiple transactions of varying quantities, including purchases of 28 grams, subsequent dealings with a co-offender, and direct supply to several individuals on multiple occasions. She was convicted of the offence of supply (not the more serious charge of ongoing supply) after an original indictment for a large commercial quantity was not established.

Before sentencing, the appellant was placed on a "Griffiths remand," a procedure allowing a court to postpone sentencing to give an offender the opportunity to demonstrate rehabilitation. During that five-month period, she returned positive drug tests on two occasions and failed to contact a detoxification unit to enter a rehabilitation programme.

Howie J sentenced her to two years' imprisonment with a non-parole period of 13 months, commencing 5 November 2004. The appellant sought leave to appeal, arguing both the head sentence and the non-parole period were manifestly excessive.

  • Whether the sentencing judge erred by failing to expressly acknowledge the appellant's earlier offer to plead guilty to the lesser charge of supply (simpliciter) and the consequent delay before conviction.
  • Whether the subjective circumstances, including the appellant's addiction, family situation, and rehabilitation efforts in custody, should have reduced the assessed criminality and not merely informed the non-parole period.
  • Whether, even if error were identified, a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Decision

The majority (Grove J and Hall J) dismissed the appeal, while Smart AJ would have allowed it and reduced the sentence to 18 months with a non-parole period of approximately 10.5 months.

On the question of the earlier guilty plea offer, Grove J and Hall J declined to infer from the absence of express mention in the remarks on sentence that Howie J had failed to give it weight. Hall J noted that, while a sentencing judge's failure to refer to a plea of guilty will generally suggest it was not weighted (citing R v Thomson & Houlton), that principle does not operate as an absolute rule. Both judges were satisfied that Howie J, as an experienced judge, was conscious of the earlier plea offer, particularly given it had been the subject of exchange with counsel.

The majority placed considerable weight on the appellant's failure to use the Griffiths remand productively. This failure, they found, was a highly significant factor. In light of the multiple supply transactions, the maximum penalty of 15 years' imprisonment available for the offence, and the leniency already embedded in the sentence imposed, the majority concluded that the sentence could not be regarded as excessive.

Applying s 6(3) of the Criminal Appeal Act 1912, the majority held that even where error is demonstrated, the Court will not reduce a sentence unless it is persuaded that a less severe sentence is warranted in law. Both Grove J and Hall J were of the view that the sentence of two years with a 13-month non-parole period already reflected substantial leniency, and that no lesser sentence was warranted.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of express reference to an early guilty plea offer in sentencing remarks does not automatically establish that the plea was not given weight, particularly where the matter was raised in exchanges with counsel.
  • Under s 6(3) of the Criminal Appeal Act 1912, a sentence will not be reduced on appeal even where identifiable error exists, unless the Court is satisfied that a less severe sentence is warranted in law.
  • A failure to comply with the conditions of a Griffiths remand (by testing positive to prohibited substances and failing to pursue rehabilitation) is a weighty sentencing consideration that can displace otherwise favourable subjective circumstances.
  • Conviction for supply of a prohibited drug carries a maximum of 15 years' imprisonment, and a sentence well below that maximum may still be upheld where the conduct involved multiple transactions across an extended period.
  • The majority and dissenting positions in this case illustrate that the weighing of subjective factors, including addiction, family hardship, and in-custody rehabilitation, remains a matter of degree, with reasonable disagreement possible even among experienced appellate judges.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Cameron v The Queen (2002) 209 CLR 339
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Cardoso (2003) 137 A Crim R 535
- R v Cocking [1999] NSWCCA 311
- R v King [2004] NSWCCA 20
- R v Penisi [2001] NSWCCA 326
- R v Sharma (2003) 54 NSWLR 300
- R v Thomson & Houlton (2000) 49 NSWLR 383