Citation: REGINA v GIP REGINA v LY [2006] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 11 April 2006
Judge(s): McClellan CJ at CL; Rothman J; Smart AJ
Background
The Crown appealed the sentences imposed on two respondents, a de facto couple, who each pleaded guilty in the District Court to supplying heroin contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The offence related to the supply of 51 grams of heroin between October and December 2002. Both respondents had pleaded guilty, and the sentences were imposed by Andrews ADCJ on 30 August 2005.
The male respondent received a two-year term of imprisonment with a fifteen-month non-parole period, to be served in full. His de facto wife received a two-year term with a one-year non-parole period, but her sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown contended both sentences were manifestly inadequate.
A factual dispute arose at sentencing about whether a further supply of approximately three ounces of heroin had occurred on 14 December 2002. The sentencing judge was not satisfied beyond reasonable doubt that the parties had reached an agreement to supply on that occasion, and therefore found only one proved act of supply.
Legal Issues
- Whether the sentencing judge correctly identified that only one act of supply was established, and whether that finding was open on the evidence
- Whether the sentencing principles applicable to "drug traffickers" (requiring custodial sentences except in exceptional circumstances) applied where only a single supply was proved
- What the correct meaning of "trafficking" is for sentencing purposes, and whether trafficking requires more than one act of supply
- Whether the suspended sentence imposed on the female respondent was appropriate, given the potential impact on two young children if both parents were imprisoned
- Whether the Crown's delay in lodging its appeals should affect the Court's exercise of its discretion to intervene
Decision
The Court of Criminal Appeal clarified the principles governing the sentencing of drug offenders and the concept of "trafficking." Drawing on the earlier decisions in R v Clark, R v Bardo, and R v Ozer, the Court confirmed that where an offender has engaged in repeated acts of supply such that the conduct amounts to trafficking, a full-time custodial sentence should ordinarily be imposed unless exceptional circumstances exist. However, a single isolated transaction does not necessarily constitute trafficking in this sense, even though the scale or nature of one transaction could still warrant a full-time custodial sentence depending on the circumstances.
The sentencing judge's conclusion that only one act of supply was proved was found to be open on the evidence. Because the conduct did not amount to trafficking (in the sense of repeated supply), the exceptional-circumstances principle did not automatically apply to the female respondent's suspended sentence. The Court found the sentencing judge had correctly identified the applicable legal framework and exercised his discretion appropriately.
In relation to the female respondent's suspended sentence, the Court accepted that highly exceptional circumstances justified taking into account the serious hardship that full-time imprisonment of both parents would cause to their two young children. One child had suffered marked developmental regression during the period of pre-sentence custody, and the family had limited alternative care arrangements. The Court was satisfied this warranted the suspension of her sentence.
The Court also weighed the delay in bringing the Crown appeals. The male respondent had already served more than two-thirds of his non-parole period by the time the appeal was heard, and the notice of appeal had not been served on him until late October 2005, nearly two months after sentencing. The Court held it would be unfair to intervene and extend his imprisonment at that late stage. Similar reasoning applied to the female respondent, given the combined effect of the lengthy pre-sentencing delay and the ongoing care obligations for her children.
Orders Made
- Both Crown appeals dismissed
Key Takeaways
- The Court of Criminal Appeal restated that "trafficking" in the sentencing context carries the connotation of supply on more than one occasion, though it left open the possibility that a single transaction of sufficient scale or complexity could still warrant a full-time custodial sentence.
- Where conduct amounts to trafficking (repeated supply), a custodial sentence is ordinarily required unless exceptional circumstances are established; that principle does not apply with the same force to a single, isolated act of supply.
- Hardship to children is capable of constituting highly exceptional circumstances justifying a non-custodial order, particularly where both parents face imprisonment and the evidence demonstrates serious developmental harm to a child during a prior period of parental separation.
- Delay in lodging a Crown appeal is a significant discretionary factor: in dismissing the appeals, the Court declined to intervene where the male respondent had nearly completed his non-parole period and it would have been unfair to extend his time in custody.
- No error was established in the sentencing judge's factual finding that only one act of supply was proved beyond reasonable doubt, based on intercepted telephone conversations that fell short of demonstrating a concluded agreement to supply.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases
- R v Liu [2005] NSWCCA 378
- R v Wirth (1976) 14 SASR 291
- R v Bednarz [2000] NSWCCA 533
- House v The King (1936) 55 CLR 499
- R v Price [2004] NSWCCA 186
- R v Livas [2006] NSWCCA 54
- R v Clark, unreported, NSWCCA, 15 March 1990
- R v Bardo, unreported, NSWCCA, 14 July 1992
- R v Ozer, unreported, NSWCCA, 9 November 1993