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45
Court of Criminal Appeal 11 March 2005

Regina v Blair

[2005] NSWCCA 78

Also reported as (2005) 152 A Crim R 462
Drugs
CRIMINAL LAW AND PROCEDURE DEEMED SUPPLY OF PROHIBITED DRUG CONVICTION SUSTAINED SENTENCE RESENTENCE BY THIS COURT APPROPRIATE

Citation: Regina v Blair [2005] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 11 March 2005
Judges: Grove J, James J, Barr J

Background

The appellant was convicted by a jury in the District Court at Penrith of supplying a commercial quantity of methylamphetamine. Police executing a search warrant at his home found 371.3 grams of the drug in a freezer, along with two sets of electronic scales and sixty-two resealable plastic bags commonly associated with drug packaging.

The appellant's account, both to police and at trial, was that he had collected the drugs in Coogee on behalf of an unnamed friend from South Australia and stored them in his freezer pending collection. He admitted becoming aware the frozen substance was drugs a few days before police arrived, but maintained he kept it only to fulfil the arrangement he had made.

After conviction, the trial judge sentenced the appellant to a non-parole period of ten years and a total term of thirteen years and four months. The appellant challenged both the conviction and the sentence on appeal.

  • Whether the trial judge erred in directing the jury on the element of "supply," specifically by failing to direct that the appellant may have possessed the drugs otherwise than for the purpose of supply (that is, as a bailee holding drugs for return to an owner)
  • Whether the jury directions regarding the appellant's knowledge that he held a commercial quantity of drugs were adequate
  • Whether the sentencing judge made errors in applying the standard non-parole period provisions, including miscalculating the position of the drug quantity within the commercial quantity range, treating prior criminal record as an aggravating factor going to the offence rather than the offender, and failing adequately to assess other factors relevant to the seriousness of the offence and the subjective circumstances

Decision

Conviction appeal dismissed. The Court accepted that the principle in R v Carey provides that returning drugs to an owner does not constitute "supply." However, the Court found that principle had no application on the facts here. The appellant received the drugs from one person in order to pass them to another. That is a straightforward case of deemed supply, and no direction about possession "otherwise than for the purposes of supply" was required in those circumstances. The directions given regarding the appellant's knowledge of the commercial quantity were also held to be sufficient.

Sentence appeal allowed. The sentencing judge had made several identifiable errors in applying the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999. First, the judge miscalculated where the drug quantity (371.3 grams) sat within the range amounting to a commercial quantity. Second, the appellant's prior criminal record was treated as an aggravating factor going to the offence itself, rather than properly as a factor personal to the offender. The High Court's decision in Veen v The Queen (No 2) makes clear that prior record cannot be used to increase a sentence beyond what is proportionate to the current offending. Third, the sentencing judge failed to adequately assess factors bearing on the objective seriousness of the offence and the subjective circumstances, including the appellant's health.

The Court of Criminal Appeal resentenced the appellant itself, taking into account his health as a mitigating factor. The Court declined to find special circumstances that would alter the statutory ratio between non-parole period and total term. The Court noted that the appellant probably committed the offence to assist the unnamed South Australian, that there was no evidence of personal financial gain, and that the Crown could not disprove the existence of that third party. Against those matters, the appellant offered no assistance to authorities, entered no guilty plea, and had no prior good character to draw upon.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed; sentence imposed in the District Court quashed
  • Appellant resentenced to imprisonment with a non-parole period of five years and three months commencing 4 March 2004 and expiring 3 June 2009, and a total term of seven years commencing 4 March 2004
  • Earliest date of eligibility for parole specified as 3 June 2009

Key Takeaways

  • The principle that returning drugs to an owner does not constitute "supply" (established in R v Carey) applies only where the accused holds the drugs for the purpose of returning them to the owner. Where an accused receives drugs from one person in order to pass them to another, no direction about possession "otherwise than for the purposes of supply" is required.

  • Under the Drug Misuse and Trafficking Act 1985, "supply" carries an extended statutory definition that encompasses keeping or having in possession for supply, and receiving for supply. Courts must apply that definition carefully when assessing whether particular conduct falls within the deemed supply provisions.

  • A sentencing court errs by treating an offender's prior criminal record as an aggravating factor going to the nature or seriousness of the current offence. Consistent with Veen v The Queen (No 2), prior record is relevant to the offender's circumstances but cannot justify a sentence disproportionate to the current offending.

  • Correct application of the standard non-parole period regime requires accurate identification of where the subject drug quantity sits within the statutory range amounting to a commercial quantity. An error in that calculation is a sentencing error amenable to appellate correction.

  • In dismissing the conviction appeal while allowing the sentence appeal, the Court of Criminal Appeal confirmed that resentencing by the appellate court itself is appropriate where multiple errors below cannot be disentangled and a fresh sentencing exercise is required.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 29(a)

Cases
- R v Carey (1990) 50 A Crim R 163
- R v Liberti (1991) 55 A Crim R 120
- R v Frazer (2002) 128 A Crim R 89
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Way (2004) 60 NSWLR 168
- R v Kural (1987) 162 CLR 505
- Saad v The Queen (1981) 70 ALR 667
- R v Barnier [2001] NSWCCA 459
- R v Johnson [2004] NSWCCA 76
- R v Shi [2004] NSWCCA 135
- R v Wickham [2004] NSWCCA 193
- R v Lau (1998) 105 A Crim R 167
- Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd (1970) 2 NSWR 156