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Court of Criminal Appeal 8 May 2006

HOCKEY v REGINA

[2006] NSWCCA 146

Drugs
SENTENCE APPEAL DRUG DEALING SIGNIFICANCE OF SUBJECTIVE FACTORS POTENTIAL FOR DOUBLE COUNTING APPEAL DISMISSED

Citation: Hockey v Regina [2006] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 8 May 2006
Judge(s): McClellan CJ at CL, Adams J, Johnson J

Background

The appellant pleaded guilty to two charges of supplying methylamphetamine in the Batemans Bay area: one relating to 2002, and a more serious commercial quantity charge relating to mid-2003 until her arrest in October 2003. A third supply offence was taken into account on a Form 1. The District Court sentenced her to a total effective sentence of three and a half years, with a non-parole period of two years, by wholly accumulating the two sentences.

The appellant did not challenge the individual sentences, which she accepted were lenient on their face. Her argument was that wholly accumulating the sentences produced an excessive result when the totality of her criminal conduct was considered. She contended the two offences were part of a connected criminal enterprise and that some degree of concurrency was required.

The sentencing judge had given a discount of between 50% and 60%, reflecting the utilitarian value of the guilty pleas, the fact that the appellant's own admissions formed much of the evidentiary basis for the first charge, and her undertaking to give evidence against her supplier. Significant subjective factors included a history of sexual assault, post-traumatic stress disorder, and drug addiction shared with her husband.

  • Whether the sentencing judge erred by wholly accumulating the two sentences without expressly addressing the principle of totality
  • Whether the two offences were sufficiently connected as parts of a single criminal enterprise to require at least partial concurrency
  • Whether drug users supplied by a dealer constitute "victims" within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether drug dealing is an offence "committed without regard to public safety" under s 21A(2)(i) of that Act
  • Whether applying multiple aggravating factors from s 21A(2) to drug supply offences creates a risk of impermissible double counting

Decision

Adams J, with whom McClellan CJ at CL and Johnson J agreed, dismissed the appeal. While it would have been preferable for the sentencing judge to expressly address totality, Adams J was satisfied that the question was in fact considered. The structure of the sentences themselves, including the use of a fixed term for the first offence and the reduction of the non-parole period on the second to twelve months, demonstrated implicit consideration of the effective sentence the appellant would serve.

The court accepted that the two offences were separated by a gap of approximately five months, during which the appellant ceased dealing after learning police were investigating her. Although the offences were part of the same general criminal activity, this break was relevant to whether they formed a sufficiently continuous and connected series to warrant partial concurrency. Standing back from the detail, Adams J found the total effective sentence was neither excessive nor manifestly excessive given the appellant's culpability, even after accounting for all subjective factors and the substantial discount applied.

Adams J also addressed, without resolving conclusively, two issues concerning s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. First, whether the drug users supplied by a dealer are "victims" for the purposes of the aggravating factors listed in that section. Second, whether drug dealing constitutes an offence committed "without regard to public safety" under s 21A(2)(i), and whether applying both provisions to the same conduct risks double counting. McClellan CJ at CL noted these issues were not argued at the hearing and preferred to leave them for resolution on a future occasion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to expressly articulate the totality principle does not automatically constitute error: the Court of Criminal Appeal confirmed that implicit consideration of totality, discernible from the structure of the sentences, can be sufficient.
  • Where two supply offences are separated by a significant break in offending, even if part of the same general criminal enterprise, that interruption is a relevant factor in assessing whether partial concurrency is required.
  • The question of whether drug users are "victims" within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 was expressly left open by the Court, with McClellan CJ at CL reserving the issue for a case in which it is properly argued.
  • Similarly unresolved is whether drug dealing falls within the s 21A(2)(i) aggravating factor of offences committed "without regard to public safety," and whether simultaneous application of related aggravating factors in drug supply cases produces impermissible double counting.
  • In dismissing the appeal, the Court treated the overall leniency of the individual sentences, and the appellant's acknowledgment of that leniency, as significant context when assessing whether the accumulated result was manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors in sentencing)

Cases
- R v Close (1993) 65 A Crim R 55
- R v Tadrosse [2005] NSWCCA 145
- R v Way (2004) 60 NSWLR 168