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Court of Criminal Appeal 8 December 2006

Budin v Regina

[2006] NSWCCA 393

Drugs
CRIMINAL LAW PLEA OF GUILTY SPECIAL CIRCUMSTANCES SUBJECTIVE CIRCUMSTANCES

Citation: Budin v Regina [2006] NSWCCA 393
Court: NSW Court of Criminal Appeal
Date: 8 December 2006
Judge(s): McClellan CJ at CL, Simpson J, Hall J

Background

The applicant, a 58-year-old man in poor health, pleaded guilty in the District Court to taking part in the supply of methylamphetamine after purchasing Sudafed (a precursor chemical) from multiple pharmacies in the Taree district on a single day. He was intercepted by police, cooperated immediately with investigators, and admitted his role at the roadside and in a subsequent interview. He was to be paid $500 for his involvement, plus $300 in expenses.

Two further offences were taken into account on a Form 1: possession of a drug precursor with intent to manufacture, and possession of LSD. District Court Judge Woods QC sentenced the applicant to a total term of four and a half years' imprisonment, comprising a non-parole period of two years and three months and a balance of term of two years and three months. Special circumstances were found, justifying a departure from the standard ratio between the non-parole period and the head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

The applicant sought leave to appeal against the severity of that sentence, arguing it was manifestly excessive in all the circumstances.

  • Whether the sentence of four and a half years was manifestly excessive, having regard to the applicant's role as a courier, his significant health conditions, his cooperation with police, his effectively clear record, his age, his early guilty plea, and his prospects of rehabilitation.
  • Whether the sentencing judge gave insufficient weight to the medical evidence or overestimated the applicant's criminality.

Decision

The Court of Criminal Appeal, constituted by Simpson J (with McClellan CJ at CL and Hall J agreeing), granted leave to appeal but dismissed the appeal. Simpson J found no express error in the sentencing judge's approach and was not persuaded that error could be implied from the length of the sentence alone.

The Court accepted that the matters raised on the applicant's behalf were all relevant sentencing considerations. However, it found that the sentencing judge had plainly taken them into account, either explicitly or by clear implication. The 25% discount for the early guilty plea was expressly applied, consistent with the principles in R v Thomson; R v Houlton. Special circumstances were found on account of the applicant's serious ill health and the fact he had not previously served a custodial sentence.

Simpson J also noted that one aspect of the submissions slightly overstated the evidence: no medical material established that the applicant was not receiving treatment he needed, and his own evidence was broadly consistent with that conclusion. The Court observed that the sentencing judge had expressly described the applicant's role as "significant" and "important" despite characterising him as a courier, which tempered the weight available to the "mere courier" argument.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A courier's role in a drug supply enterprise is not necessarily minor: the Court of Criminal Appeal confirmed that an express finding of a "significant" and "important" role qualifies any characterisation of an offender simply as a courier.
  • No error was established in the sentencing judge's approach where all relevant subjective factors, including age, health, cooperation, and early guilty plea, had been taken into account either explicitly or by clear implication.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances may be found on the basis of serious ill health and the fact that an offender has not previously served a custodial sentence, justifying a departure from the standard non-parole ratio.
  • In dismissing the appeal, the Court affirmed that a 25% discount for a plea of guilty entered at the earliest opportunity remained appropriate, consistent with R v Thomson; R v Houlton.
  • Submissions asserting inadequate medical treatment in custody must be grounded in actual medical evidence: the Court declined to accept that characterisation where the applicant's own evidence did not support it.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3, s 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383