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Court of Criminal Appeal 3 March 2006

Radisich v Regina

[2006] NSWCCA 52

Drugs
SENTENCE MANIFESTLY EXCESSIVE NO QUESTIONS OF PRINCIPLE,

Citation: Radisich v Regina [2006] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 3 March 2006
Judge(s): McClellan CJ at CL, Rothman J, Smart AJ

Background

The appellant was convicted of knowingly taking part in the supply of methylamphetamine, specifically 1.3 grams on 24 March 2005. This was the fifth in a series of five supply offences committed over approximately six weeks, all involving small quantities of the drug transacted through his de facto partner. Four additional matters were taken into account on a Form 1, including two counts of possessing a prohibited drug and two matters relating to a stolen mobile phone.

In the District Court, Morgan DCJ sentenced the appellant on Count 5 to a non-parole period of 12 months commencing 24 March 2005, with a balance of term of 18 months, giving a total sentence of 30 months. Separate nine-month sentences had been imposed on the first four supply counts, all commencing on the same date. Those sentences had already been served and were not challenged on appeal.

The appellant's offending was driven by a serious heroin and amphetamine habit, which he shared with his partner and which cost approximately $500 per day. While in custody he ceased drug use, engaged with drug and alcohol programmes, and re-established contact with his children. His brother offered both accommodation and employment upon release.

  • Whether the sentencing judge was under a misapprehension as to the relative quantity of the drug involved in Count 5 compared with the earlier counts
  • Whether the sentencing judge adequately assessed the appellant's contrition
  • Whether the sentence imposed on Count 5 was manifestly excessive

Decision

Smart AJ (with whom McClellan CJ at CL and Rothman J agreed) found the sentence on Count 5 manifestly excessive. The Court accepted that the sentencing judge had not adequately reflected the appellant's genuine contrition and had not sufficiently distinguished the circumstances of Count 5 from those of the earlier offences when calibrating the additional custodial term.

The Court noted that the appellant had demonstrated real rehabilitation progress during his time in custody: he had ceased all drug use, was engaging with rehabilitation programmes, had re-established family relationships, and had concrete prospects of employment and accommodation with his brother upon release. These factors, alongside the finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999, informed the re-sentencing.

The Court re-sentenced the appellant on Count 5 to a total term of two years commencing 24 March 2005, with a non-parole period expiring on 3 March 2006. This effectively meant the appellant was to be released to parole almost immediately upon the hearing of the appeal. The Court also directed that parole conditions include compliance with drug counselling requirements and, where assessed as appropriate by the Probation and Parole Service, entry into a residential drug rehabilitation centre.

Orders Made

  • Leave to appeal against sentence on Count 5 granted
  • Appeal against sentence on Count 5 allowed; original sentence quashed
  • In lieu of the sentence imposed on Count 5, the appellant sentenced to a total term of two years imprisonment from 24 March 2005, expiring 23 March 2007, with a non-parole period commencing 24 March 2005 and expiring 3 March 2006
  • Direction that upon release to parole, the appellant obey all reasonable directions of the Probation and Parole Service, particularly regarding drug counselling and entry into a residential drug rehabilitation centre as assessed appropriate

Key Takeaways

  • The Court of Criminal Appeal found a sentence of 30 months (with a 12-month non-parole period) manifestly excessive for a single supply of 1.3 grams of methylamphetamine, when viewed in the context of the offender's background, contrition, and rehabilitation
  • Where a sentencing court fails to give adequate weight to an offender's genuine contrition, that may constitute an error warranting appellate intervention
  • Demonstrated rehabilitation in custody, including cessation of drug use and engagement with treatment programmes, can carry significant weight at re-sentencing
  • The existence of special circumstances under the Crimes (Sentencing Procedure) Act 1999 may justify a longer-than-usual parole period, enabling supervision and rehabilitation to be pursued in the community
  • Parole directions requiring engagement with the Probation and Parole Service, including potential residential rehabilitation, were considered an appropriate component of the re-sentence given the drug-driven nature of the offending

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A

Cases cited: None