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2
Court of Criminal Appeal 2 February 2006

McAndrew v Regina

[2006] NSWCCA 12

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE OBJECTIVE OFFENCE SERIOUS NO LESSER SENTENCE WARRANTED CRIMINAL APPEAL ACT S 6(3) APPLIED

Citation: McAndrew v Regina [2006] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 2 February 2006
Judge(s): Grove J; Rothman J

Background

The appellant was sentenced in the District Court after pleading guilty to supplying not less than a commercial quantity of ketamine, a prohibited drug under the Drug Misuse and Trafficking Act 1985. Police executed a search warrant at his home in July 2004, and the appellant cooperated by directing officers to where the drugs were located. The quantity seized was more than double the commercial threshold.

The appellant was a 37-year-old disabled pensioner suffering from renal failure, requiring dialysis three times per week while in custody. He had a prior criminal record that included multiple drug-related convictions, including for cultivating and supplying cannabis. The sentencing judge, Hosking DCJ, imposed a non-parole period of four and a half years with a total term of seven and a half years.

The appellant sought leave to appeal on the grounds that the sentencing judge had erred in treating his prior record as an aggravating factor, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the appellant's prior criminal record as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act, rather than as a factor limiting leniency
  • Whether the sentence of seven and a half years (non-parole: four and a half years) was manifestly excessive in all the circumstances, including the appellant's serious health condition
  • Whether the sentencing judge's use of amphetamine sentencing statistics as a guide for a ketamine offence was an error that warranted intervention

Decision

On the first ground, the Court of Criminal Appeal acknowledged that the sentencing judge's language in describing the prior record as an "aggravating factor" was not ideal. Established authority holds that a prior record generally operates to deprive an offender of leniency that might otherwise be extended, rather than to aggravate the objective circumstances of the offence. However, the Court found this terminological imprecision had no discernible effect on the sentence ultimately imposed and did not warrant intervention.

On the question of manifest excess, the Court noted that the sentencing judge appeared to have started from a notional total sentence of ten years (equal to the standard non-parole period, which is prescribed for post-trial convictions) and applied a 25 per cent discount for the early guilty plea, consistent with the maximum of the range suggested in R v Thompson and Houlton. The resulting seven and a half year total sentence, with a non-parole period less than half the standard non-parole period, was found to be entirely appropriate given the serious objective circumstances.

The Court accepted that the sentencing judge's reference to amphetamine statistics as a guide was inappropriate, given the different prescribed quantities for the two drugs. However, the question for the appellate court was not whether the sentencing judge had referenced an incorrect analogy in the course of reasoning, but whether a different sentence should be imposed. The Court concluded that the sentence was appropriate to the facts and circumstances, and Rothman J added that any errors in applying s 21A appeared to have had little or no effect on the outcome.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A prior criminal record does not operate as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act; instead, it limits the leniency that might otherwise be available. The Court of Criminal Appeal reaffirmed this principle, citing R v Wickham and R v Walker.
  • An appellate court will not intervene merely because a sentencing judge referenced an imperfect analogy in reasoning, provided the sentence ultimately imposed is appropriate to the facts and circumstances.
  • Where an error in the application of s 21A has little or no practical effect on the sentence, intervention under the Criminal Appeal Act s 6(3) is not warranted.
  • The standard non-parole period for a post-trial conviction provides relevant parliamentary guidance even in a plea matter, and a sentence well below that benchmark may still be upheld as appropriate.
  • Serious medical conditions in custody are a mitigating consideration, but the sentencing court's express acknowledgment of those circumstances and reduction of the sentence accordingly may be sufficient, even where custody is rendered substantially more onerous.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v Walker [2005] NSWCCA 109
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Dang [2005] NSWCCA 430 (referred to in the judgment)
- DBN [2005] NSWCCA 435 (referred to by Rothman J)