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Court of Criminal Appeal 22 May 2007

Phillip Edward Smith v R

[2007] NSWCCA 138

Drugs
CRIMINAL LAW SENTENCING SENTENCE MANIFESTLY EXCESSIVE

Citation: Phillip Edward Smith v R [2007] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 22 May 2007
Judge(s): Campbell JA, James J, Smart AJ

Background

The applicant pleaded guilty in the Bathurst District Court to two drug offences arising from activity between 30 November and 12 December 2005. The first was ongoing supply of amphetamine (supplying on three or more occasions within 30 consecutive days for financial or material reward). The second was supply of cannabis. Police had executed search warrants, installed a listening device, and recorded the applicant engaging in approximately a dozen amphetamine supplies totalling around 35 grams, and around half a dozen cannabis supplies totalling between 10 and 15 grams.

The sentencing judge imposed a total of four and a half years imprisonment with a two-and-a-half-year non-parole period. The sentence for the ongoing supply offence was made partly cumulative on the cannabis supply sentence.

The applicant sought leave to appeal, arguing the sentences were affected by legal error and were manifestly excessive.

  • Whether the sentencing judge incorrectly stated the maximum penalty for the ongoing supply offence under s 25A of the Drug Misuse and Trafficking Act
  • Whether the sentencing judge impermissibly double-counted an element of the ongoing supply offence by treating financial reward as a separate aggravating factor
  • Whether the sentences imposed were manifestly excessive in all the circumstances

Decision

The Court found two distinct errors in the sentencing judge's approach to the ongoing supply offence. First, his Honour misstated the maximum penalty for that offence, which is 20 years imprisonment under s 25A of the Drug Misuse and Trafficking Act. This error was capable of distorting the sentencing exercise by setting the wrong upper boundary against which the sentence was calibrated.

Second, the sentencing judge treated the fact that the applicant supplied drugs for financial reward as an aggravating feature. However, financial or material reward is an element of the offence under s 25A itself. Taking an element of an offence into account as a separate aggravating circumstance constitutes an error of principle, effectively punishing the offender twice for the same conduct.

These errors, individually or in combination, were sufficient to vitiate the sentence for the ongoing supply offence. The Court granted leave to appeal and allowed the appeal on both sentences, proceeding to re-sentence the applicant itself. In doing so, it also took into account post-sentencing matters disclosed in an affidavit from the applicant, including two assaults suffered in custody as a result of his cooperation with law enforcement authorities, and his drug-free status while imprisoned.

On re-sentencing, the Court adopted a starting point of three years for the cannabis supply offence and six years for the ongoing supply offence. After applying a combined discount (reflecting the guilty plea and assistance to authorities), and finding special circumstances justifying a longer-than-standard parole period, those figures were reduced to 18 months and three years respectively. The sentences were made partly cumulative, with the total effective sentence significantly reduced from the original.

Orders Made

  • Leave to appeal against the sentences granted
  • Appeal against the sentences allowed
  • Original sentences of 3 August 2006 quashed
  • For the cannabis supply offence (s 25(1)): non-parole period of nine months commencing 12 December 2005, balance of term of nine months commencing 12 September 2006 and expiring 11 June 2007
  • For the ongoing amphetamine supply offence (s 25A): non-parole period of 18 months commencing 12 April 2006 and expiring 11 October 2007, balance of term of 18 months commencing 12 October 2007 and expiring 11 April 2009
  • Applicant directed to be released on parole on 11 October 2007

Key Takeaways

  • An element of a statutory offence cannot be treated as a separate aggravating factor at sentencing. Doing so amounts to an error of principle by effectively punishing the offender twice for the same conduct.
  • Misstating the maximum penalty for an offence is a sentencing error capable of vitiating the entire exercise, because the maximum penalty provides the essential framework within which a proportionate sentence is assessed.
  • Where identifiable errors of principle are established, the Court of Criminal Appeal will re-sentence the offender rather than simply remit the matter, ensuring the correct sentence is substituted without further delay.
  • Post-sentencing developments, such as assaults suffered in custody arising from cooperation with authorities, can be placed before the appellate court by affidavit and taken into account during re-sentencing.
  • Special circumstances justifying a non-standard ratio between the non-parole period and balance of term may be found where an offender requires an extended period of supervised parole to support rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW)
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 25A, 30, 31, 32(1)(h)

Cases
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Hoon & Pouoa [2000] NSWCCA 137
- R v Kairouz [2005] NSWCCA 247
- R v Khaled [2001] NSWCCA 169
- R v Mouloudi [2004] NSWCCA 96
- R v Smiroldo [2000] NSWCCA 120
- R v Tadrosse [2005] NSWCCA 145
- Sharwood v Regina [2006] NSWCCA 157