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Court of Criminal Appeal 19 May 2006

Rawlings v Regina

[2006] NSWCCA 84

Drugs
CRIMINAL PRACTICE & PROCEDURE SPECIAL CIRCUMSTANCES

Citation: Rawlings v Regina [2006] NSWCCA 84
Court: Court of Criminal Appeal, New South Wales
Date: 19 May 2006
Judge(s): Hidden J, Kirby J, Hislop J

Background

The appellant was convicted by a jury in the Campbelltown District Court on six counts under the Drug Misuse and Trafficking Act 1985. The charges related to possession of a precursor chemical (hypophosphorus acid) for the manufacture of methylamphetamine, and the supply of methylamphetamine, cannabis, and MDMA. The appellant had obtained 50 litres of the precursor from a chemical supplier by falsely declaring it would be used as a cleaning product, and then delivered it to her brother.

The sentencing judge, Marien DCJ, characterised the appellant's role as significantly greater than that of a courier. The precursor quantity was capable of producing approximately 40 times the large commercial quantity of methylamphetamine under the relevant schedule. The supply offences in counts 3 to 6, while involving relatively small quantities, were treated as part of a continuing course of criminal conduct.

The original total sentence was seven years, comprising a non-parole period of five years. The appellant sought leave to appeal, arguing errors in how the sentencing judge dealt with good character and with the finding of special circumstances.

  • Whether the sentencing judge gave sufficient weight to the appellant's good character, given the serious nature of the drug offences
  • Whether the sentencing judge made a finding of special circumstances and, if so, whether the parole period in fact reflected that finding
  • Whether the structure of the sentences on counts 4, 5, and 6 was consistent with any finding of special circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, though only in respect of the issues argued on the appeal itself. The Court confirmed the sentences on counts 1, 2, and 3, finding no error in the sentencing judge's approach to those counts or in his assessment of the objective seriousness of the precursor offences.

On the question of character, the Court accepted that good character is a relevant mitigating factor even in serious drug cases, but its weight diminishes as the gravity of the offending increases. The sentencing judge had not erred in limiting the weight given to the appellant's prior good character in the context of offences of this seriousness.

The Court identified an error, however, in the structure of the sentences for counts 4, 5, and 6. The sentencing judge had found special circumstances warranting a greater than usual proportion of the sentence to be served on parole, but the fixed terms originally imposed did not in practice deliver an extended parole period. The parole period actually produced by the original structure was insufficient to reflect the finding of special circumstances.

To correct this, the Court resentenced the appellant on counts 4, 5, and 6, imposing fixed terms of two years on each count, running concurrently, commencing 17 September 2007 and expiring 16 September 2009. This restructured the overall sentence so that the parole period genuinely reflected the finding of special circumstances. The Court declined to reopen the appeal to address a parity argument raised by the appellant in a personal letter after the hearing, noting that issue had not been argued before the Court and that the brother's sentence was itself under appeal.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences on counts 1, 2, and 3 confirmed
  • Sentences on counts 4, 5, and 6 quashed; in lieu, the appellant sentenced on each of those counts to a fixed term of imprisonment of two years, commencing 17 September 2007 and expiring 16 September 2009

Key Takeaways

  • Good character remains a relevant mitigating factor in serious drug offences, but its weight diminishes significantly as the objective gravity of the offending increases.
  • A finding of special circumstances is rendered meaningless if the structure of the sentences imposed does not, in practice, produce a longer parole period. The Court of Criminal Appeal corrected precisely this error in resentencing on counts 4 to 6.
  • Where a sentencing judge explicitly finds special circumstances, the resulting sentence structure must actually reflect that finding, not merely record it.
  • In dismissing the parity argument, the Court of Criminal Appeal noted that issues not argued before it at the hearing will not ordinarily be reopened after judgment is reserved, particularly where a co-offender's sentence is itself under separate appeal.
  • An appellant's personal letter to the Court after the hearing, raising grounds not run by counsel, will not automatically lead to those grounds being considered. The Court referred the letter to counsel, who confirmed no further application was made.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Ryan v The Queen (2001) 206 CLR 267
- R v Leroy (1984) 13 A Crim R 469
- R v Kennedy [2000] NSWCCA 527
- Pearce v The Queen (1998) 194 CLR 610
- Bushara v R [2006] NSWCCA 8
- Postiglione v The Queen (1997) 189 CLR 295