Citation: Skye Amber MIZZI v REGINA [2006] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 23 June 2006
Judges: Grove J, Hidden J, Kirby J
Background
The appellant was a 22-year-old woman with no prior convictions who had pleaded guilty in the District Court to ongoing supply of heroin under the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum of 20 years imprisonment. A further charge of knowingly taking part in the supply of heroin was taken into account on a form 1 (a procedural mechanism allowing related offences to be considered at sentencing without a separate conviction being recorded).
The offending arose from an undercover police operation. Between September and November 2004, the appellant conducted or facilitated four heroin sales to an undercover officer, each involving small quantities. The sentencing judge found she and her partner, William Ngati, were running a wider drug trafficking business, not limited to the amounts sold to police.
The District Court imposed a sentence of three years imprisonment with an 18-month non-parole period, to be served by way of periodic detention. The sentencing judge found exceptional circumstances justified departing from full-time custody, given the appellant's powerful subjective case.
Legal Issues
- Whether the three-year term of imprisonment was manifestly excessive in all the circumstances
- Whether the sentencing judge gave adequate weight to the appellant's subjective case, particularly the coercion she experienced at the hands of her partner
- Whether the sentencing judge incorrectly inflated the term of imprisonment to compensate for the leniency that flows from an order for periodic detention
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error warranting intervention.
On the question of manifest excess, Hidden J accepted that small quantities of heroin were involved in each individual transaction. However, the sentencing judge had correctly found that the appellant and her partner were engaged in a broader drug trafficking enterprise, and that finding was a proper matter to be weighed in sentencing. The offence of ongoing supply under section 25A is directed at those conducting a practice or business of supplying prohibited drugs.
On the subjective case, the Court found the sentencing judge had expressly recognised the exceptional features of the appellant's circumstances, including that she was coerced by Ngati through physical and emotional abuse, received no financial benefit, and suffered from severe depression and anxiety at the time. The sentencing judge had extended maximum leniency for the guilty plea and found special circumstances warranting a non-parole period at half the head sentence rather than the statutory norm of two-thirds.
On the periodic detention point, the Court confirmed the well-established principle that a sentencing court must first fix the length of imprisonment without regard to how it will be served, then determine the mode of service. The Court found the sentencing judge had followed that process correctly. Hidden J described the three-year term as "moderate" in the circumstances, acknowledged that a lesser sentence might have been open, but concluded that the term could not be characterised as manifestly excessive given the breadth of sentencing discretion.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that small quantities in individual transactions do not necessarily minimise the seriousness of ongoing supply where the sentencing court is satisfied a broader trafficking business existed.
- A sentence is not manifestly excessive merely because a lesser sentence might also have been open to the sentencing judge; appellate intervention requires the sentence to fall outside the acceptable range of discretion.
- Where periodic detention is ordered, the sentencing court must determine the length of the custodial term first, independently of the mode of service, before directing that it be served periodically.
- Exceptional personal circumstances, including serious coercion, psychological harm, and a finding that the offender would not have offended but for another person's influence, can justify ordering that a sentence be served by way of periodic detention rather than full-time custody, even for a serious drug offence.
- Under section 25A of the Drug Misuse and Trafficking Act 1985, the ongoing supply offence is directed at persons conducting a practice or business of supplying prohibited drugs, a characterisation that can apply even where individual transactions involve small quantities.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of prohibited drugs)
Cases:
- R v Smiroldo (2000) 112 A Crim R 47
- R v Zamagias [2002] NSWCCA 17