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Court of Criminal Appeal 12 July 2006

Regina v Saba

[2006] NSWCCA 214

Drugs
CRIMINAL APPEAL SENTENCING CROWN APPEAL WHOLESALE DRUG DEALER REHABILITATION FULL

Citation: Regina v Saba [2006] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 12 July 2006
Judges: Handley JA, Kirby J, Hoeben J

Background

The respondent pleaded guilty to five counts of supplying prohibited drugs, with a further five offences taken into account on a Form 1. The offences involved wholesale-level supply of substantial quantities of MDMA (ecstasy), cocaine, cannabis, ketamine, and heroin across multiple Sydney suburbs over a period of roughly two months in 2004.

The District Court judge imposed concurrent sentences of 18 months periodic detention on each count, with non-parole periods of 12 months, after finding that the respondent had promptly engaged in rehabilitation with considerable success. The respondent had also already served nine months of full-time custody on remand before sentencing.

The Crown appealed, arguing the sentences were manifestly inadequate and that periodic detention was inappropriate for offences of this nature.

  • Whether drug trafficking offences of this scale required full-time custodial sentences, or whether exceptional circumstances existed to justify periodic detention.
  • Whether rehabilitation alone constitutes an exceptional circumstance capable of displacing the general rule requiring full-time custody for drug trafficking.
  • Whether the sentencing judge had correctly applied the Form 1 matters in determining the sentence on count 1.
  • Whether the sentencing judge had properly followed the principle in Pearce v The Queen requiring separate sentences for each substantive offence before considering questions of cumulation, concurrency, and totality.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding multiple errors in the original sentencing exercise. The court reaffirmed the longstanding principle that drug trafficking offences require full-time custodial sentences unless exceptional circumstances are present. The objective seriousness of wholesale supply across multiple drug types and multiple suburbs precluded any finding of exceptional circumstances on objective grounds.

The court held that rehabilitation, while relevant and genuinely achieved in this case, does not by itself constitute an exceptional circumstance sufficient to justify departing from full-time custody. The respondent's favourable family background and good education were similarly found not to carry sufficient mitigating weight to alter that conclusion in the circumstances.

The sentencing judge also erred procedurally. By imposing identical sentences on count 1 and the remaining counts despite the Form 1 matters, the judge manifestly failed to reflect those additional offences in the sentence on count 1. The court further found the judge had not followed the Pearce v The Queen requirement to fix separate appropriate sentences for each offence before then addressing cumulation, concurrency, and totality.

By majority, the court resentenced the respondent to full-time custody, structured as concurrent terms with count 1 carrying a three-year sentence (with an 18-month non-parole period) and counts 2 through 5 each carrying two-year sentences (with 12-month non-parole periods). Kirby J, in dissent on the question of full-time custody, would have substituted an increased sentence of periodic detention, giving greater weight to the respondent's rehabilitation and the double jeopardy considerations inherent in Crown appeals.

Orders Made

  • Appeal allowed.
  • Sentences imposed by McGuire DCJ quashed.
  • Count 1 (including Form 1 matters): three years imprisonment commencing 24 June 2005, expiring 23 June 2008; non-parole period of 18 months commencing 24 June 2005, expiring 23 December 2006.
  • Counts 2, 3, 4 and 5: two years imprisonment commencing 24 June 2005, expiring 23 June 2007; non-parole period of 12 months commencing 24 June 2005, expiring 23 June 2006.
  • All sentences to run concurrently with each other and with the count 1 sentence.

Key Takeaways

  • Drug trafficking offences require full-time custodial sentences unless exceptional circumstances exist. The Court of Criminal Appeal confirmed this principle applies consistently to wholesale supply cases regardless of the number of drug types involved.
  • Rehabilitation, even when genuine and successful, does not by itself constitute an exceptional circumstance capable of justifying periodic detention in place of full-time custody for drug trafficking: R v Thompson (NSWCCA, 4 April 1991, unreported).
  • Under the Pearce v The Queen (1998) 194 CLR 610 principle, a sentencing court must impose separate appropriate sentences for each substantive offence before turning to questions of cumulation, concurrency, and totality. Failing to differentiate sentences where the offending warrants differentiation constitutes sentencing error.
  • Form 1 matters must be meaningfully reflected in the sentence imposed on the count to which they are attached. Imposing the same sentence on that count as on other counts where no Form 1 matters apply amounts to a failure to take those matters into account.
  • General deterrence carries particular weight in wholesale drug supply cases. The respondent's personal circumstances, including good education and family background, did not sufficiently mitigate the overall criminality to affect the sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 32

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Betwell (NSWCCA, 4 December 1990, unreported)
- R v Cacciola (1998) 104 A Crim R 178
- R v Carrion (2002) 49 NSWLR 149
- R v Clarke (NSWCCA, 15 March 1990, unreported)
- R v Thompson (NSWCCA, 4 April 1991, unreported)