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Court of Criminal Appeal 2 December 2005

Esquilant v Regina

[2005] NSWCCA 421

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF DRUGS

Citation: Esquilant v Regina [2005] NSWCCA 421
Court: New South Wales Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Grove J, Sully J, Howie J

Background

The applicant pleaded guilty in the Local Court to a charge of ongoing supply of cocaine under s 25A of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum penalty of 20 years imprisonment. The charge arose from three separate supplies of approximately one gram of cocaine each, made to an undercover police operative on 14 January, 27 January, and 4 February 2004, for $250 per transaction. He was arrested immediately after the third supply.

The applicant was a 27-year-old university student with no prior criminal record. A psychiatrist who had been treating him gave evidence that the applicant supplied drugs to friends as a way of socialising and building connections, rather than for profit, and that the applicant suffered from depression and a panic disorder stemming from a difficult childhood.

At sentencing in the District Court, Judge Williams imposed a total term of imprisonment comprising a 12-month non-parole period and a 15-month balance of term. The applicant sought leave to appeal, raising one ground: that the sentencing judge had improperly taken into account his broader pattern of supply to friends and associates as an aggravating feature.

  • Whether the sentencing judge erred by taking into account the applicant's supply of cocaine to his social circle beyond the three charged transactions.
  • Whether doing so breached the principle in De Simoni v The Queen (1981) 147 CLR 383, which prohibits treating uncharged conduct that would itself constitute a separate offence as a matter of aggravation.

Decision

The Court of Criminal Appeal found no merit in the applicant's ground of appeal and dismissed the appeal. Howie J, with whom Grove J and Sully J agreed, concluded that a fair reading of the sentencing remarks showed the judge was not using the broader supply history as an aggravating feature but rather to understand the context in which the three charged supplies occurred.

The Court drew on its earlier decision in R v Smiraldo (2000), which had established that when sentencing for an ongoing supply offence under s 25A, it is both permissible and necessary to assess the magnitude of the offender's operation. The charged transactions alone do not capture the full nature of an ongoing supply practice, and a sentencing judge is entitled to consider all evidence that throws light on the objective criminality of the offending conduct.

The Court also noted that the sentencing judge had, in fact, rejected most of the Crown's arguments about aggravating circumstances. The judge declined to find that cash found at the premises was drug proceeds, or that scales and a calculator were drug-supply tools. The finding about supply to friends and associates was characterised as a contextual assessment of the offending, not an exercise in punishing the applicant for uncharged offences. The De Simoni principle was therefore not engaged on these facts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, a sentencing court is permitted to consider the broader scope and nature of an offender's supply activities, not merely the specific transactions founding the charge.
  • The principle in De Simoni v The Queen prohibits treating uncharged conduct as an aggravating circumstance, but it does not prevent a sentencing court from examining surrounding conduct to assess the overall context and objective seriousness of the offending.
  • A distinction exists between using uncharged supplies to understand the nature of an ongoing supply operation and using those supplies as standalone aggravating features that increase the sentence beyond the criminality of the charge itself.
  • In dismissing the appeal, the Court confirmed that a sentencing judge must assess whether charged incidents are isolated acts or part of a broader course of conduct, and is entitled to make that assessment on all available evidence.
  • No error was established where the sentencing judge had already rejected the Crown's more expansive aggravation arguments and confined findings about broader supply to a contextual evaluation of the offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- De Simoni v The Queen (1981) 147 CLR 383
- R v Smiraldo (2000) 112 A Crim R 47
- R v Smith [2002] NSWCCA 278
- R v Hoon and Puna [2000] NSWCCA 137