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Court of Criminal Appeal 22 September 2006

LANGHAM v REGINA

[2006] NSWCCA 306

Drugs
APPEAL AGAINST SENTENCE IMPRISONMENT DRUG MISUSE AND TRAFFICKING POST TRAUMATIC STRESS AND DEPRESSION HISTORY OF DRUG USE

Citation: Langham v Regina [2006] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 22 September 2006
Judge(s): Mason P, Sully J, Latham J

Background

The appellant pleaded guilty in October 2005 to two counts: manufacturing methylamphetamine with a co-offender between 20 and 30 October 2003, and supplying methylamphetamine between May and June 2004. A further matter involving inciting another person to possess pseudoephedrine tablets for use in drug manufacture was taken into account on a Form 1. Police discovered a partly dismantled clandestine laboratory at a rural property the appellant had leased, and later intercepted telephone calls confirming the supply activity.

The appellant was 48 years old at the time of the offences and had nine prior convictions spanning 1974 to 2005, including three drug-related matters. He had a documented history of post-traumatic stress disorder (PTSD) following a serious assault in 1998, along with depression and drug dependency. A clinical forensic psychologist assessed him as having a low to moderate likelihood of reoffending (less than around 30%).

Judge Black QC in the District Court sentenced the appellant to a total effective sentence of four years imprisonment with a non-parole period of three and a half years. The sentences on the two counts were made partially cumulative. The appellant sought leave to appeal, arguing the sentencing judge failed to give adequate weight to his subjective circumstances and erred in refusing to find special circumstances justifying a longer period of post-custodial supervision.

  • Whether the sentencing judge failed to give adequate weight to the appellant's subjective factors, particularly his PTSD, depression, and history of drug dependency
  • Whether the sentencing judge erred in declining to find special circumstances under the Crimes (Sentencing Procedure) Act 1999, which would have extended the post-custodial supervision period
  • Whether the partial cumulation of the two sentences was structurally flawed

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously, with Mason P delivering the principal judgment and Sully and Latham JJ agreeing.

On the subjective factors, the Court acknowledged that the appellant entered custody carrying PTSD symptoms, moderate depression, and a history of substance abuse. These circumstances attracted some sympathy. However, they did not reduce the criminality of the offences to a degree that revealed appealable error in the sentences imposed. The sentencing judge was not obliged to make explicit reference to every subjective feature, and the drug dependency did not excuse the appellant's conduct.

On special circumstances, the Court accepted that the psychologist had suggested the appellant would benefit from a lengthy period of post-release supervision. However, the report did not specify what "lengthy" meant, and the existing sentences already provided for six months of post-custodial supervision at the conclusion of the non-parole period. Nothing was advanced that established exceptional circumstances warranting a departure from the standard ratio of non-parole period to head sentence.

On the partial cumulation of sentences, the Court described the approach taken by the sentencing judge as "if anything a generous one in all of the circumstances." No appealable error was demonstrated. The primary obligation under s 44(1) of the Crimes (Sentencing Procedure) Act 1999 is to impose an appropriate custodial sentence addressing the criminality involved, and the sentencing judge correctly gave that primary effect.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to expressly reference every subjective factor in remarks on sentence does not automatically constitute appealable error, provided the overall sentence is within the appropriate range.
  • PTSD, depression, and drug dependency can attract sympathy at sentencing but do not, by themselves, reduce the criminality of serious drug manufacture and supply offences to a level that warrants interference on appeal.
  • Declining to find special circumstances is open to a sentencing judge where prospects of rehabilitation are reasonable but not exceptional, and where the psychologist's recommendation for extended supervision lacks sufficient specificity.
  • In dismissing the challenge to partial cumulation, the Court of Criminal Appeal noted that the structure of the sentences was, if anything, favourable to the appellant rather than unduly harsh.
  • Under s 44(1) of the Crimes (Sentencing Procedure) Act 1999, the need to impose an appropriate custodial sentence reflecting the seriousness of the offending takes primary effect in drug trafficking and manufacture cases.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24A, 25(1), 27
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(1)

Cases: No specific cases were cited in the portions of the judgment provided.