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Court of Criminal Appeal 27 April 2006

REGINA v. SMITH

[2006] NSWCCA 129

Drugs
CRIMINAL LAW CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v Smith [2006] NSWCCA 129
Court: New South Wales Court of Criminal Appeal
Date: 27 April 2006
Judge(s): James J, Simpson J, Hall J

Background

The respondent, a young man aged 18 at the time of the offence, pleaded guilty in the District Court to supplying a commercial quantity of ecstasy (160 grams, approximately 500 tablets) on 26 October 2004. The offence occurred just five days after his 18th birthday, following a period of undercover police surveillance involving telephone intercepts and a transaction observed at a McDonald's carpark in Strathfield. He was sentenced by Woods DCJ to two years' imprisonment with a non-parole period of one year, dating from 26 January 2005.

The Director of Public Prosecutions filed a Crown appeal, arguing that the sentence was manifestly inadequate given the objective seriousness of the offence. By the time the appeal was heard, the respondent had already been released from custody after serving the non-parole period, and had commenced work as a waiter with no further contact with former associates.

  • Whether the sentence of two years' imprisonment (with a one-year non-parole period) was manifestly inadequate for an offence of supplying a commercial quantity of ecstasy
  • Whether the principles applicable to sentencing young offenders justified the sentencing judge's approach
  • Whether, even if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene

Decision

Hall J (with whom James J and Simpson J agreed) acknowledged that the sentence was manifestly inadequate given the objective seriousness of the offence, which carried a maximum penalty of 20 years' imprisonment. The offence was planned, committed in company, and involved a quantity of ecstasy exceeding the commercial threshold. However, the sentencing judge had legitimately taken into account several significant mitigating factors: the respondent's age and proximity to his 18th birthday, his reasonable prospects of rehabilitation, his early guilty plea, his limited role in the drug supply chain, and the personal disruption associated with his migration from China.

The Court found that, even setting aside the mitigating factors, any increased sentence it could properly impose would have been only marginally longer than that already served. In making this assessment, the Court applied the principle that a Crown appeal against sentence is not simply an occasion to substitute the appellate court's own view, but requires an error of principle or a sentence so outside the range of appropriate sentences as to constitute manifest inadequacy.

Critically, the respondent had already been released from custody before the appeal was determined. The Court drew on its earlier decision in Regina v MD, BM, NA, JT, emphasising that requiring a young person with genuine prospects of rehabilitation to return to custody imposes a significantly greater burden than if a longer sentence had been imposed from the outset. Weighing the limited extent to which any increased sentence could be justified against the disproportionate hardship of re-imprisonment, the Court exercised its residual discretion to decline to intervene.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a court retains a residual discretion to decline to intervene even where a sentence is found to be manifestly inadequate, particularly where the respondent has already been released from custody.
  • A conviction for supplying a commercial quantity of ecstasy carries a maximum of 20 years' imprisonment, and objective seriousness remains a primary consideration; however, proximity to the age of 18 at the time of the offence is a weighty mitigating factor that can significantly reduce the appropriate penalty.
  • Where re-sentencing would impose a substantially greater burden on a young offender who has been released and is rehabilitating, the appellate court may properly decline to interfere even if the original sentence fell below the acceptable range.
  • The residual discretion against intervention is reinforced where the additional term any re-sentencing could lawfully impose is only marginally longer than the term already served.
  • Sentencing young offenders requires particular attention to individual circumstances, including personal background, family disruption, and prospects of rehabilitation, alongside the objective gravity of the offence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), s 25A

Cases:
- R v Bimahendali [1999] NSWCCA 409
- R v Dang [2005] NSWCCA 430
- R v Peel (1971) 1 NSWLR 247
- R v Harmouche [2005] NSWCCA 398
- R v Readman (1990) 47 A Crim R 181
- R v Chang [2003] NSWCCA 2327
- R v Huynh [2003] NSWCCA 239
- R v Wall [2002] NSWCCA 42
- House v The King (1936) 55 CLR 499
- R v Collins [2000] NSWCCA 236
- R v O'Brien & Anor (CCA, unreported, 23 August 1989)
- R v Wong & Ng (1988) 39 A Crim R 1
- R v MD, BM, NA, JT [2005] NSWCCA 242