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Court of Criminal Appeal 5 February 2007

TRAN v R

[2007] NSWCCA 110

DrugsTraffic & driving
CRIMINAL LAW SUPPLY AND POSSESS PROHIBITED DRUG SINGLE HEROIN DOSE PRIOR CONVICTIONS FOR DRIVING OFFENCES

Citation: TRAN v R [2007] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 5 February 2007
Judge(s): McClellan CJ at CL (sitting as a single judge)

Background

The appellant had been sentenced in October 2005 for two driving while disqualified offences, receiving suspended sentences of 6 months and 12 months imprisonment respectively. Just two weeks later, he arranged to sell a single dose of heroin (0.2 grams, worth $50) to an undercover police officer, and was subsequently found in possession of a further 0.4 grams of heroin upon arrest. The new drug offending constituted a breach of both suspended sentences.

The matter was referred to the Drug Court, where the appellant was admitted into the Drug Court Program. His participation was short-lived: after 49 days plus 7 days on consensual sanctions, his involvement was terminated for non-compliance and he was refused bail.

At his final sentencing in July 2006, the Drug Court judge imposed an overall effective sentence of 16 months imprisonment with a non-parole period of 11 months, covering the breach of bond traffic matters and the drug offences. The appellant appealed, arguing that the sentence for the supply offence was manifestly excessive.

  • Whether the sentence imposed for supplying a prohibited drug was manifestly excessive, given the small quantity of heroin involved (a single dose worth $50).
  • Whether, in the circumstances, a custodial sentence for the supply offence was appropriate at all.
  • Whether, if a custodial sentence was warranted, the sentence should be brought to an early end given the appellant's imminent parole eligibility.

Decision

The Court of Criminal Appeal, sitting as a single judge under a direction from the Chief Justice, dismissed the appeal. McClellan CJ at CL acknowledged that the quantity of heroin involved was small and that, in some circumstances, a lesser sentence might have been available. However, his Honour found that the sentencing judge had appropriately balanced the factors both for and against the appellant.

Central to the sentencing judge's reasoning had been the need to mark out an effective parole period and impose an overall term that served both as punishment and as a general deterrent to others who might engage in similar conduct. The Court of Criminal Appeal found no error in that approach.

The Court also noted that the appellant's failure to complete the Drug Court Program was a relevant circumstance that the sentencing judge was entitled to take into account when departing from (and reducing) the initial sentence structure. The overall sentence could not, in the Court's view, be characterised as excessive.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court may impose a custodial term for supply of even a small quantity of a prohibited drug, where the surrounding circumstances, including prior breaches of suspended sentences, justify it.
  • Failure to complete a Drug Court Program is a relevant sentencing consideration; the Drug Court is not required to replicate the leniency originally anticipated when a participant enters the program.
  • Under the Drug Court regime as it then applied, breach of suspended sentences by fresh offending is not a trivial matter, and the sentencing court is obliged to revoke the bond and activate the original custodial terms.
  • A sentence is not manifestly excessive simply because a lesser term might theoretically have been available in different circumstances; the appellate court applies a high threshold before disturbing a sentencing judge's exercise of discretion.
  • General deterrence remains a legitimate sentencing objective even for relatively minor drug supply offences, particularly where the offender has a history of non-compliance with court orders.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1)
- Drug Court Act 1998 (NSW), s 8AA (as it then applied)

Cases cited: No cases were cited in the judgment.