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Court of Criminal Appeal 29 September 2005

REGINA v THOMPSON

[2005] NSWCCA 340

Also reported as (2005) 156 A Crim R 467
Drugs
SENTENCING PLEA OF GUILTY FORM 1 OFFENCES SUPPLY OF A SINGLE TABLET OF ECSTASY STANDARD NON PAROLE PERIOD

Citation: Regina v Thompson [2005] NSWCCA 340
Court: New South Wales Court of Criminal Appeal
Date: 29 September 2005
Judges: Mason P, Barr J, Johnson J

Background

The applicant pleaded guilty in the Local Court to deemed supply of not less than a large commercial quantity of MDMA (ecstasy), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1986. Police had intercepted calls in which he arranged to supply ecstasy tablets at $14.50 each, and on arrest he was found carrying eight bags of tablets totalling nearly two kilograms, well above the prescribed large commercial quantity of 0.5 kilograms. The street value of the tablets exceeded $110,000.

He was committed to the District Court for sentence and asked that two further charges be taken into account on a Form 1 document: supply of a single ecstasy tablet (supplied as a "tester") and possession of $10,650 reasonably suspected of being unlawfully obtained. The sentencing judge imposed 16 years' imprisonment with a non-parole period of 12 years.

The applicant sought leave to appeal against that sentence. Both parties accepted that the sentencing judge had made errors of approach, principally because the judge did not have the benefit of the Court of Criminal Appeal's later guidance in R v Way (2004) 60 NSWLR 168 regarding the operation of s 21A and the application of the standard non-parole period framework where an offender has pleaded guilty.

  • Whether the sentencing judge erred in applying the standard non-parole period provisions under s 54B(2) of the Crimes (Sentencing Procedure) Act 1999, particularly in the context of a guilty plea
  • How the aggravating and mitigating factors listed in s 21A were to be properly identified and weighed
  • Whether the offence sat in the middle of the range of objective seriousness for offences of this type
  • Whether there was a basis for finding "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999, so as to justify a longer parole period relative to the non-parole period
  • What sentence was appropriate upon resentencing, accounting for the 25% discount for an early guilty plea

Decision

The Court of Criminal Appeal accepted that errors had flowed from the absence of Way guidance at the time of the original sentence, and proceeded to resentence. Mason P (with whom Barr J and Johnson J agreed) assessed the offence as falling in the middle of the range of objective seriousness for offences of this type. He found no basis for adjusting that assessment upward on aggravating factors, noting that treating the organised nature of the enterprise as an aggravating factor would risk double-counting, given that organisation is inherent in an offence involving a large commercial quantity.

The principal mitigating factor under s 21A(3) was the early guilty plea, which attracted a 25% discount reflecting its maximum utilitarian value. The applicant's prior criminal record, which included three offences of supplying a prohibited drug, was treated as negating any claim to leniency on the basis of prior good behaviour. That record also supported the refusal to find special circumstances, as did the applicant's qualified remorse.

Subjective factors relating to the applicant's difficult family background and the physical and psychological consequences of an earlier motor vehicle accident provided some further mitigation in his favour, beyond what the standard discount for the plea alone would produce. The Court held these warranted a modest additional adjustment to the sentence.

The Court confirmed that, where an offender would have attracted the standard non-parole period of 15 years upon conviction after trial, that figure remains an important reference point when sentencing after a guilty plea. Applying the 25% discount to a head sentence derived from the standard non-parole period, and making a further adjustment for the applicant's subjective circumstances, Mason P arrived at a reduced sentence.

Orders Made

  • Appeal upheld
  • Sentence reduced to 13 years and 4 months' imprisonment, with a non-parole period of 10 years and a balance of term of 3 years and 4 months
  • Sentence backdated to commence 17 April 2003 (the date of arrest)
  • Earliest eligible date for release on parole: 16 April 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Way applies to sentencing for large commercial drug supply offences, and that the standard non-parole period remains an important reference point even where the offender has pleaded guilty rather than been convicted after trial.
  • A 25% discount for an early guilty plea with maximum utilitarian value operates on the head sentence derived by reference to the standard non-parole period, effectively reducing both the head sentence and the non-parole period proportionately.
  • Treating the organised nature of a drug supply enterprise as an aggravating factor under s 21A(2) risks impermissible double-counting where that organisation is already inherent in the elements of the offence charged (supplying a large commercial quantity).
  • Prior convictions for drug supply, even where the overall record is not lengthy, can be sufficient to negate leniency based on prior good behaviour and to justify refusing a finding of special circumstances.
  • Subjective factors, including the consequences of personal injury and difficult personal history contributing to an offender's drift into criminality, remain available to produce a further reduction beyond the standard plea discount, even where no special circumstances are established.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1986 (NSW), ss 25(2), 33(1)(a), (3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 44, 54A(2), 54B(2), 54B(3)
- Criminal Assets Recovery Act 1990 (NSW)

Cases
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- Markarian v R (2005) 215 ALR 213
- R v Markarian [2003] NSWCCA 8
- R v Thompson & Houlton (2000) 49 NSWLR 383
- R v AJP (2004) 150 A Crim R 575
- R v GJ Davies [2004] NSWCCA 319
- R v Johnson [2004] NSWCCA 140
- R v Mendez [2005] NSWCCA 246
- R v Pham [2005] NSWCCA 94
- R v Shi [2004] NSWCCA 135