Citation: Regina v Dang [2005] NSWCCA 430
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Studdert J, Whealy J, Howie J
Background
The respondent pleaded guilty before a magistrate to supplying not less than the commercial quantity of cocaine, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years' imprisonment. Police intercepted telephone calls linking him to both a supplier and a buyer, and arrested him carrying 983 grams of cocaine at 82.5% purity, almost four times the prescribed commercial quantity. A small quantity of methylamphetamine was also found in his vehicle, and he asked the sentencing court to take that possession offence into account.
In the District Court, Judge Sorby sentenced the respondent to a non-parole period of 4 years with a balance of term of 2 years 6 months, a total of 6.5 years. The Crown appealed, contending the sentence was manifestly inadequate.
The respondent was 24 years old at the time of the offence, had come to Australia from Vietnam as a child, and held relevant subjective circumstances including remorse, a guilty plea at the earliest opportunity, cocaine addiction, psychological vulnerability, and good prospects of rehabilitation. He was, however, on a conditional liberty bond at the time of the offending.
Legal Issues
- Whether the sentence imposed by the District Court was manifestly inadequate for an offence of supplying a commercial quantity of cocaine
- How the standard non-parole period under Division 1A of Part 1 of the Crimes (Sentencing Procedure) Act 1999 applies where an offender has pleaded guilty
- Whether the offence fell within the mid-range of seriousness for the purposes of the standard non-parole period provisions
- What sentence the Court of Criminal Appeal should impose in the exercise of its discretion on a Crown appeal, having regard to double jeopardy and the respondent's current prison classification
Decision
The Court of Criminal Appeal accepted the Crown's submission that the sentence was manifestly inadequate. Against a maximum penalty of 20 years, a total term of 6.5 years with a non-parole period of 4 years failed to reflect the objective seriousness of the offence. The Court found the sentencing judge had either given insufficient weight to the seriousness of the supply or excessive weight to the respondent's subjective circumstances.
The standard non-parole period for this class of offence is 10 years, applicable where the offence falls in the mid-range of seriousness. The Court found that, despite the quantity and purity of the drug and the planned nature of the criminal activity, the offence fell below that mid-range. The respondent was not a principal, participated in only a single supply transaction, and did so in the context of his own cocaine addiction.
The Court identified a non-exhaustive list of reasons for departing below the standard non-parole period. These included the respondent's role as a non-principal, the single-occasion nature of the offending, his guilty plea at the first reasonable opportunity, remorse, limited criminal history, good rehabilitation prospects, the fact that this was his first custodial sentence, and his current prison classification.
Consistent with the principle that a Crown appeal court should impose a sentence at the lowest end of the available range, and taking into account double jeopardy and the practical consequence that a non-parole period exceeding 5 years would retard the respondent's prison classification from C1, the Court imposed a non-parole period of 5 years rather than the 5.5 years it considered the minimum a sentencing judge should have imposed.
Orders Made
- The Crown appeal was allowed
- The sentence imposed in the District Court was quashed
- The respondent was resentenced to a non-parole period of 5 years, commencing 9 September 2004 and expiring 8 September 2009
- A balance of term of 4 years was imposed, expiring 8 September 2013 (total sentence: 9 years)
Key Takeaways
- A Crown appeal court retains a discretion to impose a sentence below the minimum it considers a sentencing judge should have imposed, where factors such as double jeopardy and an offender's prison classification provide good reason to do so.
- The standard non-parole period of 10 years for commercial drug supply under s 25(2) of the Drug Misuse and Trafficking Act 1985 operates as a statutory benchmark for mid-range offences; where an offence falls below the mid-range, the sentencing court must identify and articulate the reasons for departing from that benchmark.
- Participation as a non-principal in a single supply transaction, combined with addiction as a motivating factor, can place an offence below the mid-range of seriousness notwithstanding the large quantity and high purity of the drug involved.
- An early guilty plea, genuine remorse, limited criminal history, and strong rehabilitation prospects remain relevant mitigating factors, though they do not override the need for a sentence that adequately reflects the objective gravity of large-scale drug supply.
- On Crown appeals, the Court of Criminal Appeal generally imposes a sentence at the lowest end of the range available to the sentencing court, reflecting the double jeopardy inherent in requiring an offender to be resentenced.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(2)(j), 54B, Division 1A Part 1
- Criminal Procedure Act 1986 (NSW)
Cases:
- R v Way (2004) 60 NSWLR 168
- R v AJP (2004) 150 A Crim R 575
- R v Mills [2005] NSWCCA 175
- R v Shi [2004] NSWCCA 135
- R v Nai Poon (2003) 56 NSWLR 284
- R v Neale (2004) 148 A Crim R 493
- Wong v The Queen (2001) 207 CLR 584