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Court of Criminal Appeal 10 March 2006

Livas v Regina

[2006] NSWCCA 54

Drugs
CRIMINAL LAW SENTENCING PARITY IN SENTENCING DISCRETION CONSTRAINT ON EXERCISE OF DISCRETION MATTERS RELEVANT TO DISCRETION

Citation: Livas v Regina [2006] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 10 March 2006
Judge(s): Grove J, Rothman J

Background

The appellant pleaded guilty in the District Court to possession of a prohibited drug in a quantity deemed to constitute supply under the Drug Misuse and Trafficking Act 1985. Specifically, he was found with 2.26 kilograms of cannabis, slightly more than twice the indictable quantity but only about one-tenth of the commercial quantity. He had agreed, for a payment of $500, to collect the package from a courier connected to an interstate trafficking syndicate, though he was not alleged to be a member of that syndicate.

The sentencing judge in the District Court imposed a fixed term of six months' imprisonment. The judge considered parity with a co-offender, Israel Gosling, who was a member of the trafficking syndicate and had been sentenced to a nine-month non-parole period plus an additional nine months for offences involving more than three times the quantity of cannabis, as well as supply of ecstasy and other charges.

The appellant sought leave to appeal, raising five grounds including that the sentence was manifestly excessive, that the sentencing judge failed to consider a non-custodial option, that the judge erred in his parity analysis, and that the judge mischaracterised his involvement with the syndicate.

  • Whether the fixed term of six months' imprisonment was manifestly excessive in the circumstances
  • Whether the sentencing judge erred by failing to consider a sentence other than full-time imprisonment, in particular whether the principle requiring custodial sentences for drug traffickers applied to this offender
  • Whether the word "trafficking" in the relevant authorities required more than a single isolated act of deemed supply, and whether the facts here met that standard to the requisite standard of proof
  • Whether the sentencing judge's parity analysis with co-offender Gosling was sound
  • Whether the sentencing judge erred in his assessment of remorse and likelihood of reoffending

Decision

On the question of manifest excess, the Court of Criminal Appeal found that a fixed six-month term for this activity was within the available range and could not, in isolation, be characterised as manifestly excessive. However, the Court identified error in the sentencing judge's reasoning on other grounds, which opened the door for resentencing.

The Court examined the principle that only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers. Critically, it held that for this principle to apply, the sentencing judge was required to find beyond reasonable doubt that the offender was involved in "trafficking" in the relevant sense. Drawing on earlier authority, the Court confirmed that "trafficking" carries a connotation of supply on more than a single isolated occasion. The material before the sentencing judge was not capable of satisfying that standard, and his Honour therefore erred in treating a custodial sentence as effectively mandatory.

On parity, the Court found the sentencing judge's comparison with Gosling to be flawed. Gosling was an actual member of the trafficking syndicate, had dealt in more than three times the quantity of cannabis, faced additional drug and driving offences, and was sentenced by a different judge. The sentencing judge did not appear to have examined Gosling's remarks on sentence or statement of facts, leaving the parity analysis without proper foundation.

Taking into account that the appellant had already served one month in custody and had been under supervision for well over a year while on bail pending appeal, the Court resentenced him to a six-month term of imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, with release on a good behaviour bond. The Court noted that the most significant punitive impact of imprisonment tends to occur in the first months, and that requiring the appellant to serve further time would in effect impose two such settling periods, producing a result harsher than the original sentence in its totality.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed and replaced with imprisonment for six months from 1 February 2006, expiring 31 July 2006
  • Execution of the sentence suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • Appellant released on a good behaviour bond for the term of the sentence, subject to conditions including: appearing before the Court if called upon; good behaviour; notifying the Court Registrar of address changes; reporting to NSW Probation and Parole Service within 48 hours; accepting supervision and reasonable directions of Probation and Parole; not consuming any prohibited substance; and any other standard conditions required by Probation and Parole

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principle requiring custodial sentences for drug traffickers does not automatically apply to every offender convicted of deemed supply. The sentencing court must first be satisfied beyond reasonable doubt that the offender was engaged in "trafficking" in the relevant sense.
  • "Trafficking," in the context of the sentencing authorities, carries a connotation of supply on more than a single, isolated occasion. A solitary act of deemed supply, in the absence of further evidence of trafficking activity, does not engage the principle that non-custodial sentences are reserved only for exceptional cases.
  • Facts relied upon adversely against an offender at sentencing must be proven beyond reasonable doubt, while facts raised by the offender in mitigation need only be established on the balance of probabilities.
  • A flawed parity analysis constitutes a sentencing error. Where a sentencing judge draws parity comparisons with a co-offender, those comparisons must be grounded in a proper examination of the co-offender's circumstances, including the full range of offences sentenced and the nature of their involvement.
  • In resentencing where the offender has already served part of the original term and has been on supervised bail for an extended period, the Court of Criminal Appeal may take into account the cumulative effect of that supervision alongside the time already in custody when determining the appropriate substituted sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12

Cases
- Pilley (1991) 56 A Crim R 202
- Bardo (Unreported, NSWCCA, 14 July 1992)
- R v James (1995) 14 A Crim R 364