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13
Court of Criminal Appeal 12 February 2007

Fayd'Herbe v R

[2007] NSWCCA 20

Drugs
SENTENCE APPEAL ONGOING SUPPLY OF ECSTASY

Citation: Fayd'Herbe v R [2007] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 12 February 2007
Judge(s): Adams J, Howie J, Price J

Background

The appellant was sentenced in the District Court on 18 July 2006 for ongoing supply of ecstasy under s 25A of the Drug Misuse and Trafficking Act 1985, with five further offences taken into account on a Form 1 schedule. The conduct involved selling small quantities of ecstasy tablets to undercover police officers on multiple occasions near a hotel in North Sydney, totalling eight tablets (2.46 grams) sold for $230 across the principal offence, plus further supply and possession conduct over roughly four months.

The sentencing judge found the offences sat well towards the bottom of the seriousness range for s 25A and were committed to fund the appellant's addiction. The appellant had significant favourable subjective features, including no prior convictions, successful completion of the MERIT rehabilitation programme, employment, and considerable personal hardship.

The District Court imposed an overall term of two years and six months with a non-parole period of twelve months, to be served by way of full-time custody. The appellant sought leave to appeal, contending the sentence was manifestly excessive and that periodic detention should have been ordered instead.

  • Whether the sentence of two years and six months (non-parole period of twelve months) was manifestly excessive given the objective seriousness and the appellant's subjective circumstances
  • Whether the sentencing judge erred by declining to order the sentence be served by way of periodic detention
  • Whether the sentencing judge erred by not specifying the utilitarian discount applied for the early guilty plea
  • Whether "exceptional circumstances" must exist before a non-full-time custodial sentence can be imposed for substantial drug dealing under s 25A

Decision

On the question of manifest excess, Adams J accepted that the starting point of approximately three years and two months was at the higher end of the available range, but held that neither the overall term nor the non-parole period was appealably excessive. The Court inferred a utilitarian discount of around 20 percent had been applied, consistent with the guilty plea entered at first arraignment, and found that not granting the full indicative 25 percent did not constitute an error requiring appellate intervention.

On the failure to specify the discount, Adams J was critical of the sentencing judge's reasoning. His Honour had declined to nominate a figure on the basis of the matter's complexity, but Adams J considered the case straightforward enough that a figure could and should have been given. The Court nonetheless stopped short of finding this constituted a legal error, accepting that a significant discount had in fact been applied.

On periodic detention, Adams J noted that Judicial Commission statistics showed full-time imprisonment was imposed in only around 30 percent of s 25A cases involving offenders with no prior convictions. He considered it was open to the sentencing judge to have ordered periodic detention, but was not persuaded that the refusal to do so constituted an error that required correction. The sentence therefore stood.

Howie J agreed with the proposed orders but expressly reserved his position on whether the case fell within any exceptional category justifying a non-custodial sentence, noting the Court had received no submissions on the point. He observed that the quantities supplied were roughly four times the indictable amount over four months and characterised this as substantial involvement in drug distribution.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence at the higher end of the available range is not necessarily appealably excessive, even where the offending sits towards the lower end of objective seriousness, provided the overall exercise of discretion cannot be shown to have miscarried.
  • Sentencing courts should ordinarily specify the utilitarian discount applied for an early guilty plea, consistent with R v Thomson & Houlton (2000) 49 NSWLR 383; transparency and predictability in discounting serves the purpose of encouraging early pleas, and unexplained omissions make appellate review more difficult.
  • The failure to state a utilitarian discount does not automatically constitute a legal error where it can be inferred that a significant discount was in fact applied.
  • A refusal to impose periodic detention rather than full-time custody does not constitute error simply because periodic detention was an available option on the facts; the appellant must demonstrate the discretion miscarried.
  • Howie J left open the question of whether ongoing supply involving quantities around four times the indictable threshold over several months constitutes "substantial" dealing for the purpose of the line of authority in R v Gu [2006] NSWCCA 104, noting no submissions had been directed to this issue.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A
- Crimes Act 1900 (NSW), s 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Gu [2006] NSWCCA 104
- Mizzi v The Queen [2006] NSWCCA 194
- R v Gip; R v Ly (2006) 161 A Crim R 173
- R v Carrion (2000) 49 NSWLR 149
- R v Kairouz [2005] NSWCCA 247
- R v Braithwaite [2005] NSWCCA 451
- R v Cacciola (1998) 104 A Crim R 178
- R v CBK [2002] NSWCCA 457
- R v Kipic; R v Elias [2004] NSWCCA 452
- R v Ha [2004] NSWCCA 386
- R v Khaled [2001] NSWCCA 169
- R v BCC [2006] NSWCCA 130