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Court of Criminal Appeal 26 June 2006

Lal v R

[2006] NSWCCA 197

Drugs

Citation: Lal v R [2006] NSWCCA 197
Court: New South Wales Court of Criminal Appeal
Date: 26 June 2006
Judge(s): Studdert J, Kirby J, Johnson J

Background

The applicant pleaded guilty in the District Court to supplying a prohibited drug, specifically ten ecstasy tablets with an estimated aggregate weight of 2.88 grams. The prosecution case rested on an intercepted telephone conversation in which the applicant agreed to supply the drug. The quantity was just above the indictable threshold of 1.25 grams under the Drug Misuse and Trafficking Act.

The sentencing judge also took into account two additional cannabis supply offences under s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences occurred in September 2004, within a sixteen-day period, and the principal offence was committed while the applicant was on bail for the first scheduled matter. Judge Sorby sentenced the applicant in the District Court on 11 November 2005 to a non-parole period of eighteen months and a further twelve months on parole.

The applicant sought leave to appeal, arguing the sentence was manifestly excessive in light of his significant rehabilitation during the twelve months he was on bail before sentencing.

  • Whether the sentencing judge gave sufficient weight to the applicant's rehabilitation in setting the length of the custodial sentence
  • Whether the sentence imposed was more consistent with an established course of commercial drug dealing, which the applicant's conduct did not reflect
  • Whether the sentencing judge placed undue weight on the fact that the principal offence was committed while the applicant was on bail
  • Whether the sentence was manifestly excessive such that appellate intervention was warranted

Decision

The Court of Criminal Appeal found no error of fact or principle in the sentencing judge's reasons themselves. The judge had correctly identified the aggravating factor of offending on bail, appropriately referenced relevant authority on the need for custodial sentences in drug supply cases, and was entitled to find the conduct went beyond a single isolated transaction given the scheduled offences and the character of the intercepted conversation.

The Court also accepted the sentencing judge was correct to impose a full-time custodial sentence and to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a longer parole period relative to the non-parole period.

However, Studdert J (with Kirby and Johnson JJ agreeing) concluded that the length of the sentence imposed failed to make due allowance for the degree of rehabilitation the applicant had achieved while on bail. The applicant had obtained full-time employment, enrolled in a TAFE course, and maintained strong family support. The sentencing judge had expressly acknowledged these matters but, in the Court's view, had not adequately translated that acknowledgment into the sentence length. Additional material tendered as exhibit A before the Court of Criminal Appeal further demonstrated the applicant's rehabilitative progress.

The Court found this was an error warranting intervention and proceeded to resentence the applicant. Comparing the outcomes in R v Clark and R v Bardo, which were distinguished on their facts, the Court treated neither as determinative and assessed the appropriate sentence by reference to the specific features of this case.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Non-parole period of twelve months imposed, dating from 13 October 2005 and concluding on 12 October 2006
  • Parole period of eight months imposed, dating from 13 October 2006

Key Takeaways

  • The Court of Criminal Appeal confirmed that full-time custodial sentences are generally appropriate for drug supply offences, including where no commercial profit is established, provided the conduct extends beyond a genuinely isolated transaction.
  • Rehabilitation achieved during a period of bail before sentencing can justify a materially shorter custodial sentence than would otherwise be warranted, consistent with a line of authority cited in R v Eastway.
  • Under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, offending while on bail is a statutory aggravating factor that a sentencing court must take into account.
  • No error of principle in a sentencing judge's reasons is required before an appellate court can intervene: it is sufficient that the ultimate sentence manifestly fails to give due weight to a relevant mitigating consideration.
  • Scheduled offences taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 are relevant to the sentencing calculus, and the requirement in those cases to give weight to personal deterrence and retribution was confirmed by reference to Attorney General's Application No. 1 of 2002.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 32, 44(2)
- Drug Misuse and Trafficking Act (NSW), s 32

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- R v Clark (unreported, NSWCCA, 15 March 1990)
- R v Bardo (unreported, NSWCCA, 14 July 1992)
- R v Eastway (unreported, NSWCCA, 19 May 1992)