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Court of Criminal Appeal 5 September 2006

Naim v Regina

[2006] NSWCCA 289

Drugs

Citation: Naim v Regina [2006] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 5 September 2006
Judges: Giles JA, Sully J, Latham J

Background

The appellant pleaded guilty in the Parramatta District Court to two drug supply offences. The first count involved the supply of methylamphetamine on 14 May 2003, carrying a maximum penalty of 15 years' imprisonment. The second, and more serious, count involved the joint supply of not less than the large commercial quantity of methylamphetamine on 29 May 2003 (1,244.3 grams), an offence carrying a maximum penalty of life imprisonment. A further offence under the Poisons and Therapeutic Goods Act 1966 (NSW) involving the supply of ketamine was also taken into account on sentencing.

At the time of both offences, the appellant was on a conditional liberty bond imposed by the Central Local Court only weeks earlier, following convictions for possessing a prohibited drug and goods in custody.

The primary judge, Ellis DCJ, sentenced the appellant to a fixed term of two years for the first count and nine years (comprising a six-year non-parole period and a three-year additional term) for the second count, with both sentences running concurrently from 29 May 2003. The appellant sought leave to appeal against sentence.

  • Whether the primary judge erred in the way he applied the standard non-parole period scheme under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when sentencing for the large commercial drug supply offence.
  • Whether the six-year non-parole period, which fell significantly below the statutory standard non-parole period of 15 years, was adequately explained and justified on the facts.

Decision

The sole ground of appeal concerned the primary judge's application of the standard non-parole period framework. The statutory standard non-parole period for a large commercial supply offence under s 25(2) of the Drug (Misuse and Trafficking) Act 1985 is 15 years. The primary judge departed downward from that standard, fixing a non-parole period of six years. He gave three reasons for treating the objective seriousness of the offence as toward the lower end: the quantity involved was near the minimum threshold for a large commercial quantity; the transaction appeared to be a one-off deal despite telephone surveillance; and the appellant's personal gain was modest (approximately $5,000).

The Court of Criminal Appeal accepted that the primary judge was entitled to depart from the standard non-parole period, provided he made clear on the face of his reasons why he was doing so. The Court noted, however, that sentencing is not a mathematical exercise but a process of intuitive synthesis, drawing on objective criminality, subjective features, and relevant statutory provisions together.

The Court was not satisfied that any error had been established in the primary judge's approach to that synthesis. The Court also observed, without formally acting upon it, that the decision to run both sentences wholly concurrently gave the appellant a significant benefit that was arguably not warranted given the two offences arose from separate criminal acts on separate days. The Court further noted the aggravating effect of the appellant's commission of the offences while subject to a bond, which had been granted only weeks earlier upon his implicit assurance to the court that he would comply with the law.

The Court granted leave to appeal, accepting the point raised was a serious question of law deserving consideration, but then dismissed the substantive appeal.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A sentencing judge is not required to mechanically apply the standard non-parole period; however, the judge must expressly state on the face of the sentencing remarks why they have departed upward or downward from the prescribed standard.
  • Under the standard non-parole period scheme in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for a large commercial drug supply offence under s 25(2) of the Drug (Misuse and Trafficking) Act 1985 is 15 years, against a maximum of life imprisonment.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing involves an "intuitive synthesis" of all relevant matters, not a step-by-step calculation of individual factors in isolation, consistent with the principle from Regina v Beavan.
  • Committing serious drug offences while subject to a conditional liberty bond constitutes an aggravating factor, given the offender has explicitly accepted an obligation to comply with the law as a condition of that leniency.
  • No error was established where a primary judge reduced a non-parole period significantly below the standard, provided that departure was reasoned and supported by identifiable features of the offending and the offender.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Poisons and Therapeutic Goods Act 1966 (NSW), s 10(3)

Cases:
- Queen v Way (2004) 60 NSWLR 168
- Regina v Beavan, unreported, NSWCCA, 22 August 1991