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Court of Criminal Appeal 25 June 2007

Regina v Stricke

[2007] NSWCCA 179

Drugs
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUG STANDARD NON PAROLE PERIOD PLEA OBJECTIVE SERIOUSNESS

Citation: Regina v Stricke [2007] NSWCCA 179
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2007
Judge(s): Simpson J, Howie J, Hislop J

Background

The respondent pleaded guilty in the District Court to two counts of supplying a prohibited drug (MDMA, commonly known as ecstasy) in amounts exceeding the large commercial quantity, plus one count of supplying a smaller quantity of cocaine and a goods in custody offence. The ecstasy supply counts arose from a police controlled operation in which the respondent supplied 5,000 tablets (1.2 kg) to an undercover operative in February 2006 and a further 18,000 tablets (approximately 4.2 kg) in March 2006, receiving $75,000 for the first transaction.

At sentencing, Tupman DCJ in the District Court found a very strong subjective case in the respondent's favour. Mitigating factors included his youth (born 1977), no prior criminal record, a dysfunctional upbringing, a long history of drug addiction, minor brain damage with some cognitive deficits, and genuine prospects of rehabilitation. Her Honour imposed sentences running wholly concurrently, producing an aggregate of 9 years with a 6-year non-parole period.

The Crown appealed on the ground that the individual sentences on counts 1 and 2, and the aggregate sentence, were manifestly inadequate and failed to reflect the objective seriousness of the offending.

  • Whether the sentences imposed on counts 1 and 2 were manifestly inadequate having regard to objective seriousness and the applicable standard non-parole period of 15 years
  • Whether the sentencing judge properly applied the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999
  • Whether running both serious supply sentences wholly concurrently was appropriate, or whether partial accumulation was required to reflect the totality of the criminality

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the sentences on counts 1 and 2 were manifestly inadequate. Both offences involved supply of ecstasy well above the large commercial quantity threshold, carrying a maximum of life imprisonment and a standard non-parole period of 15 years. The sentencing judge's starting points and the resulting non-parole periods did not adequately reflect that gravity.

On the question of concurrent versus accumulated sentences, the Court found that her Honour's approach was equivocal. She had at one point indicated the count 2 sentence was slightly higher to reflect the greater quantity involved, but then concluded that a concurrent 6-year non-parole period across both counts was sufficient to capture the totality of the criminality. The Court noted that under the principle in Pearce v R, it is not permissible to inflate a sentence on one count merely to reflect the total criminality of all offences. The correct approach where multiple serious offences are involved is to impose appropriate individual sentences and then consider accumulation.

The Court determined that partial accumulation of one year was appropriate, structuring the sentences so that count 2 commenced one year after count 1. The Court also noted the constraints ordinarily applied to Crown appeals, meaning resentencing was approached conservatively rather than as a wholesale reassessment. The sentences on count 3 and the goods in custody offence were confirmed.

Orders Made

  • Appeal upheld
  • Sentence on count 1 quashed; replaced with a fixed term of 6 years imprisonment commencing 2 March 2006 and expiring 1 March 2012
  • Sentence on count 2 quashed; replaced with a non-parole period of 8 years commencing 2 March 2007 and expiring 1 March 2015, with a balance of term of 5 years commencing 2 March 2015 and expiring 1 March 2020
  • Sentences on count 3 and the goods in custody offence confirmed

Key Takeaways

  • Running wholly concurrent sentences across separate serious drug supply offences may itself indicate manifest inadequacy where the offences are distinct and substantial in their own right.
  • Under the principle confirmed in Pearce v R and applied in R v Knight, a sentencing court cannot lawfully inflate a sentence on one offence simply to capture the totality of criminality across multiple offences; the correct mechanism is appropriate individual sentences combined with partial or full accumulation.
  • A strong subjective case, including youth, no prior record, drug addiction, and rehabilitation prospects, will be considered at sentencing but does not override the need for sentences that reflect the objective gravity of large commercial drug supply.
  • The standard non-parole period of 15 years for supply above the large commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985 operates as a significant benchmark, and departures below that figure require proper justification.
  • In Crown appeals, the Court of Criminal Appeal applies established constraints on resentencing, resulting here in a conservative adjustment (one year of partial accumulation) rather than a wholesale reassessment of the sentences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Pearce v R (1998) 194 CLR 610
- Regina v Way (2004) 60 NSWLR 168
- R v Knight [2004] NSWCCA 145
- R v MAK [2006] NSWCCA 381
- Mulato v Regina [2006] NSWCCA 282
- R v Mills [2005] NSWCCA 175
- R v Hammoud (2000) 118 A Crim R 66
- R v Wall (2002) NSWCCA 42
- R v Drollett NSWCCA, unreported, 14 February 2002