Citation: Braithwaite, Jarrett v Regina [2005] NSWCCA 451
Court: NSW Court of Criminal Appeal
Date: 16 December 2005
Judge(s): Hodgson JA; McClellan CJ at CL; Hall J
Background
A 21-year-old applicant pleaded guilty in the Downing Centre Local Court to two counts of supply of a prohibited drug under s.25(1) of the Drug Misuse and Trafficking Act 1985. The charges arose from an incident at Kings Cross railway station on 20 August 2004, where a police sniffer dog detected the applicant and a subsequent search uncovered methylamphetamine (approximately 20.89 grams in 24 small bags) and MDMA/ecstasy (47 tablets totalling 17.78 grams), together with electronic scales, a lockable box, and $540 in cash.
The applicant was sentenced in the District Court in May 2005 by English DCJ, who imposed full-time custodial sentences: a non-parole period of 9 months with an overall term of 2 years 7 months on count 1, and a non-parole period of 12 months with an overall term of 3 years on count 2. The sentencing judge declined to suspend the sentences under s.12 of the Crimes (Sentencing Procedure) Act, finding the offences were not at the lower end of the scale and that only exceptional circumstances could justify a non-custodial outcome for drug trafficking.
The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had misapplied the law regarding suspension of sentences and had failed to give sufficient weight to his youth and immaturity.
Legal Issues
- Whether the sentences imposed were manifestly excessive having regard to the applicant's youth, good character, and other subjective circumstances
- Whether the sentencing judge correctly stated and applied the test for suspending a sentence under s.12 of the Crimes (Sentencing Procedure) Act
- What weight should properly be given to youth and immaturity when sentencing for drug supply offences
- Whether the applicant's failure to give evidence at the sentencing hearing affected the weight available to remorse and contrition
Decision
The Court of Criminal Appeal granted leave to appeal and found the original sentences were manifestly excessive. Hodgson JA (with whom McClellan CJ at CL and Hall J agreed) held that the sentences imposed in the District Court were disproportionate when compared with comparable cases, particularly given the applicant had pleaded guilty, attracted a 25% utilitarian discount, and had strong subjective features including his age, prior good character, and apparent rehabilitation.
On the question of suspension, the Court found the sentencing judge had erred in stating that suspension was only available if the offences fell towards the lower end of the scale or if exceptional circumstances existed. That is not the correct legal test under s.12. However, the Court accepted that in drug supply cases, a strong case must nonetheless be made out before suspension becomes appropriate.
The Court declined to suspend the sentences in this case. Although the applicant had submitted an affidavit indicating remorse, the Court noted it was difficult to assess genuine contrition from an affidavit alone, particularly where the applicant had not given evidence before the sentencing judge. On balance, suspension was not regarded as appropriate for offences of this seriousness.
The Court resentenced the applicant to concurrent terms: a non-parole period of 6 months and additional term of 12 months on count 1, and a non-parole period of 8 months and additional term of 16 months on count 2. Special circumstances were found, justifying departure from the standard statutory ratio between non-parole and additional term, to allow for a longer period of supervised rehabilitation on parole.
Orders Made
- Leave to appeal granted
- Appeal allowed; sentences imposed in the District Court quashed
- Count 1: non-parole period of 6 months (12 May 2005 to 11 November 2005); additional term of 12 months (12 November 2005 to 11 November 2006)
- Count 2: non-parole period of 8 months (12 May 2005 to 11 January 2006); additional term of 16 months (12 January 2006 to 11 May 2007)
- Sentences to be served concurrently
- Applicant to be released to parole on 12 January 2006
Key Takeaways
- The Court of Criminal Appeal confirmed that s.12 of the Crimes (Sentencing Procedure) Act does not require an offence to fall at the lower end of the scale, nor the existence of exceptional circumstances, before a sentence can be suspended. The sentencing judge's articulation of that test was an error of law.
- Even where the correct suspension test is applied, the court accepted that drug supply offences present a category where a strong affirmative case is required to justify a non-custodial outcome. The threshold, while not "exceptional circumstances," remains meaningful.
- Youth and immaturity are recognised as potentially significant mitigating factors in sentencing, but in this case the Court treated them as relevant to proportionality in setting the length of the sentence rather than as grounds for avoiding full-time custody altogether.
- An offender's failure to give evidence at a sentencing hearing limits a court's ability to find genuine remorse and contrition. An affidavit filed on appeal was held to carry less persuasive weight than direct evidence before the original sentencing judge.
- Resentencing produced substantially shorter terms, with special circumstances found to extend the additional (parole) term beyond the statutory ratio, reflecting the applicant's rehabilitation progress and the need for ongoing supervision.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss. 10(1), 25(1)
- Crimes Act 1900 (NSW), s. 527C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s. 12
Cases:
- Hearne [2001] NSWCCA 37, 124 A Crim R 451
- Kaina [2000] NSWCCA 23, 110 A Crim R 47
- R v Foster [2001] NSWCCA 215
- R v GDP (1991) 53 A Crim R 112
- R v Knapp [2004] NSWCCA 419