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Court of Criminal Appeal 5 April 2005

Regina v Payne

[2005] NSWCCA 84

Drugs

Citation: Regina v Payne [2005] NSWCCA 84
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2005
Judge(s): Adams J, Bell J, Hall J

Background

The respondent pleaded guilty in the District Court at Coffs Harbour to supplying methylamphetamine on 28 February 2002. The charge concerned 34.7 grams of the drug, though the sentencing judge found that approximately half was intended for the respondent's own personal use and half was to be shared gratuitously with his partner, who was also an addict.

This was the respondent's second supply offence. He had been convicted of an earlier supply of 10.8 grams of methylamphetamine and received a suspended sentence under a section 12 good behaviour bond. The second offence was committed approximately ten months into that bond.

The sentencing judge, Hosking DCJ, imposed twelve months' imprisonment with a nine-month non-parole period, to be served by periodic detention, ordered concurrently with the bond proceedings. The Director of Public Prosecutions appealed against the sentence for the second offence on the ground of inadequacy.

  • Whether the sentence of twelve months' imprisonment for the second supply offence was manifestly inadequate in the circumstances.
  • Whether the sentences for the first and second offences should have been accumulated rather than served concurrently.
  • What weight should be given to the gratuitous, non-commercial nature of the supply and the respondent's addiction when assessing objective seriousness.
  • Whether the nature of the supply to one person, for no commercial gain, placed the offending at the lower end of the sentencing range.

Decision

The Court allowed the appeal, though the three judges diverged on the extent of intervention required. Bell J and Hall J (the majority) held that the sentence was inadequate in light of the quantity involved, the deliberate commission of the offence while subject to a good behaviour bond, and the fact that supplying the drug to the respondent's partner was a specific purpose behind its acquisition rather than merely an incidental consequence.

Adams J agreed that the sentences should have been accumulated, because the two offences were separate and distinct. However, Adams J took the view that the sentencing judge's assessment of the appropriate punishment was correct, or at least not shown to be in error, and would have confined the Court's intervention to ordering accumulation. His Honour gave significant weight to the small effective quantity, the absence of any commercial element, and the inextricable link between the respondent's addiction and the supply.

Hall J agreed with Bell J's reasoning and orders. His Honour emphasised that the second offence involved a greater quantity than the first, was committed deliberately within ten months of the bond being entered, and reflected both a disregard for the law and an abuse of the trust inherent in the good behaviour bond.

The majority concluded that the objective and subjective features of the offence called for a term of imprisonment exceeding the eighteen months imposed for the first offence. The Court substituted a sentence of twenty months' imprisonment with a non-parole period of twelve months, to be served by periodic detention, finding special circumstances warranting departure from the standard statutory ratio between non-parole and parole periods.

Orders Made

  • Appeal allowed; sentence on count two imposed in the District Court quashed.
  • In substitution, the respondent sentenced to twenty months' imprisonment by way of periodic detention, commencing Friday 20 May 2005.
  • Non-parole period of twelve months specified, expiring 19 May 2006.
  • Respondent to be released on parole at the expiration of the non-parole period.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where two supply offences are separate and distinct, sentences should ordinarily be accumulated rather than served concurrently.
  • A gratuitous, non-commercial supply of a prohibited drug to a single person places the offending towards the lower end of the objective seriousness scale, but does not immunise a sentence from appellate correction where other aggravating factors are present.
  • Committing a second drug supply offence while subject to a good behaviour bond is a significant aggravating factor, reflecting both deliberate disregard for the law and an abuse of the trust inherent in the bond.
  • The effective quantity of drug actually subject to supply, rather than the total quantity particularised in the charge, is the appropriate measure for sentencing purposes where the sentencing court finds part was for personal use.
  • Special circumstances justifying departure from the statutory non-parole ratio can be found where accumulation of sentences and the need for a longer supervisory period on parole both bear on the appropriate sentence structure.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Drugs (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 29

Cases:
- Dinsdale v R (2000) 202 CLR 321
- R v Allpass (1993) 72 A Crim R 561
- R v Wright (1997) 93 A Crim R 48