AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
27
Court of Criminal Appeal 5 April 2006

REGINA v YILDIZ

[2006] NSWCCA 97

Also reported as (2006) 160 A Crim R 218
Drugs
CONVICTION APPEAL SUPPLY OF PROHIBITED DRUGS WHETHER DUPLICITY WHETHER VERDICT UNANIMOUS PROVISO SENTENCE APPEAL

Citation: [2006] NSWCCA 97
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2006
Judge(s): Simpson J, Adams J, Hoeben J

Background

The appellant was charged with supplying a prohibited drug after police arrested him while he was driving a vehicle containing 602.1 grams of ecstasy. The prosecution relied on intercepted telephone calls made on 11 April 2003, surveillance evidence tracking the appellant and an associate in the North Sydney area, and the drugs and cash found in the vehicle upon his arrest at Auburn.

The Crown's case drew on two aspects of the Drug Misuse and Trafficking Act 1985: the broad statutory definition of "supply," which includes agreeing or offering to supply, and the deeming provision in section 29, which treats possession of a quantity above a specified threshold as possession for the purpose of supply unless the accused proves otherwise. The appellant was convicted in the District Court and sentenced by Ainslie-Wallace DCJ.

The appellant brought both a conviction appeal and a sentence appeal to the Court of Criminal Appeal.

  • Whether the charge was duplicitous, in that the Crown's reliance on both an alleged agreement to supply (established through intercepted calls) and deemed supply (through possession) amounted to charging more than one offence in a single count.
  • Whether the resulting latent ambiguity meant the jury's verdict may not have been unanimous, with different jurors potentially convicting on different factual bases.
  • Whether the proviso applied to cure any defect found in the conviction appeal.
  • On sentence, whether the sentencing judge gave undue weight to the standard non-parole period, double-counted the planning element as an aggravating feature, and sentenced on a factual basis unsupported by the evidence.

Decision

Conviction appeal: The Court dismissed the conviction appeal, finding that the duplicity argument rested on a false premise. The Crown had not, on proper analysis, run two separate cases. As Simpson J explained, the Crown's opening made clear it was relying on the deeming provision arising from possession, and any confusion about the nature of the case originated with defence counsel at trial, not with the prosecution. There was therefore no genuine risk that different jurors convicted on different factual bases.

Sentence appeal: The Court granted leave to appeal against sentence and allowed that appeal. Adams J found three errors in the sentencing below. First, the sentencing judge had proceeded on a factual basis that the evidence did not support. Second, planning had been treated as an aggravating feature when it was already an inherent element of the offence, producing impermissible double-counting. Third, the sentencing judge had given the standard non-parole period excessive weight in circumstances where the offence fell well below the middle of the range of objective seriousness. These errors combined to produce a sentence that was manifestly excessive.

The Court resentenced the appellant, finding that the subjective circumstances, including a good rehabilitation prognosis and the fact this was his first term of imprisonment, warranted a sentence substantially below the standard non-parole period. Special circumstances were also found, justifying a departure from the usual statutory ratio between the non-parole period and the balance of the term.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Sentence appeal allowed; sentence imposed below quashed.
  • Appellant resentenced to a total term of eight years: a non-parole period of five years commencing 23 June 2004 and expiring 22 June 2009, with a balance of term of three years expiring 22 June 2012.
  • Earliest eligible parole date: 22 June 2009.

Key Takeaways

  • A duplicity argument in a drug supply prosecution will not succeed where the Crown has consistently presented its case on a single basis, even if the statutory definition of "supply" is broad enough to encompass multiple modes of commission.
  • Where a sentencing court treats planning as an aggravating feature in circumstances where it is already inherent to the offence as charged, the resulting double-counting constitutes a sentencing error.
  • The standard non-parole period is not a benchmark to be applied mechanically; the Court of Criminal Appeal confirmed it carries diminished significance where the offence falls well below the midpoint of objective seriousness.
  • In resentencing, the Court recognised that first-time custodial sentences and evidence of active rehabilitation during imprisonment are relevant subjective matters capable of justifying significant departure from the standard non-parole period.
  • Special circumstances warranting an extended balance of term were established by the appellant's status as a first-time prisoner and the court's assessment that post-release supervision on parole would serve his rehabilitation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 21A(2)(n), 25, 29, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B(4)

Cases:
- Walsh v Tattersall [1996] HCA 26; 188 CLR 66
- S v The Queen [1989] HCA 66; 168 CLR 266
- Weiss v The Queen [2005] HCA 81
- Elyard v The Queen [2006] NSWCCA 43
- The Queen v McNamara [2005] NSWCCA 195
- R v AJP (2004) 150 A Crim R 575
- R v Way (2004) 60 NSWLR 168
- R v Porteous [2005] NSWCCA 115
- R v Walker [2005] NSWCCA 109
- R v Mills [2005] NSWCCA 175