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Court of Criminal Appeal 21 June 2007

Carrion v Regina

[2007] NSWCCA 174

Drugs
CRIMINAL LAW SENTENCING SUPPLYING PROHIBITED DRUG (ECSTASY) MENTAL CAPACITY GENERAL DETERRENCE SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Carrion v Regina [2007] NSWCCA 174
Court: New South Wales Court of Criminal Appeal
Date: 21 June 2007
Judge(s): McClellan CJ at CL, Hislop J, Smart AJ

Background

The appellant pleaded guilty in the District Court to supplying not less than the indictable quantity of ecstasy, an offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 15 years imprisonment. Police found 62 ecstasy tablets concealed in his vehicle during a drug detection operation at a hotel, and two mobile phone messages received during his arrest suggested active drug supply. The sentencing judge rejected his account that the drugs were purchased collectively by friends for a birthday party.

The District Court sentenced the appellant to a non-parole period of 12 months followed by a parole period of 15 months. A psychologist's report noted the appellant had a full-scale IQ of 75, placing him at the upper end of the mildly intellectually handicapped range. The sentencing judge found this was not relevant to the question of general deterrence, concluding the appellant had sufficient intellectual capacity to understand what he was doing and to appreciate the criminality of his conduct.

The appellant sought leave to appeal on two grounds: that the sentencing judge wrongly dismissed his intellectual capacity as irrelevant, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant's reduced intellectual capacity was irrelevant to the question of general deterrence
  • Whether the total sentence imposed was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal confirmed that while reduced intellectual capacity can, in some cases, warrant less weight being given to general deterrence, there is no general principle requiring that outcome. The rationale is that an offender with a mental disorder or significant disability may not serve as an appropriate vehicle for making an example to others. However, the significance of any intellectual impairment must be assessed against the specific facts and circumstances of the individual case.

In this case, the Court found the sentencing judge's approach was open to him. The appellant had no mental illness or disorder, had functioned in paid employment, raised three children largely on his own for a decade, and was actively involved in the community. The sentencing judge was entitled to conclude that the appellant's IQ of 75 did not diminish his appreciation of what he was doing or the seriousness of the offending. No error in the treatment of general deterrence was established.

On the question of manifest excess, the majority (Hislop J and McClellan CJ at CL) dismissed this ground, finding the sentence was not excessive given the objective seriousness of the offending, which involved approximately ten times the indictable quantity of ecstasy. Smart AJ dissented on this point, forming the view that the sentence was manifestly excessive when the full range of subjective factors was properly weighed, including the appellant's limited intellectual capacity, his role as a sole carer of three children, and his prospects for rehabilitation.

Smart AJ proposed re-sentencing the appellant to a non-parole period of 9 months and a balance of term of 9 months, with a direction for release on parole. The majority, however, dismissed the appeal, leaving the original sentence in place.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed (per majority of McClellan CJ at CL and Hislop J)

(Note: Smart AJ dissented and proposed alternative orders including quashing the sentence and substituting a shorter term with supervised parole. Those orders did not represent the outcome of the appeal.)

Key Takeaways

  • A reduced intellectual capacity does not automatically reduce the weight given to general deterrence in sentencing. The relevance of any impairment must be evaluated against all the facts and circumstances of the individual case.
  • Where an offender has no diagnosable mental illness or disorder, has functioned capably in daily life, and demonstrably understood the criminal nature of their conduct, a sentencing court may properly find that limited intellectual capacity is not a mitigating factor for deterrence purposes.
  • The Court of Criminal Appeal confirmed the principle from R v Scognamiglio that an offender with a mental disorder may not be an appropriate medium for general deterrence, while also affirming that no general rule flows from this in cases of reduced but not severely impaired intellectual functioning.
  • In dismissing the appeal, the majority upheld the District Court's conclusion that supply of approximately ten times the indictable quantity of ecstasy warranted full-time imprisonment regardless of the appellant's sympathetic subjective circumstances.
  • Smart AJ's dissent illustrates that where a sole carer's imprisonment causes significant hardship to dependent children, and where the offender has genuine rehabilitation prospects, those factors may carry sufficient weight to justify a reduced sentence on re-assessment.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v R (2005) 215 ALR 213
- R v Bloomfield (1998) 44 NSWLR 734
- R v Bus (NSWCCA, unreported, 3 November 1995)
- R v Chong [2003] NSWCCA 274
- R v Elchami (NSWCCA, unreported, 15 December 1995)
- R v Henry (1999) 46 NSWLR 346
- R v Scognamiglio (1991) 56 A Crim R 81