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Court of Criminal Appeal 13 July 2007

Phillips v Regina

[2007] NSWCCA 211

Drugs
CRIMINAL LAW SUPPLY OF PROHIBITED DRUG WHETHER ACCUSED KNEW DRUG IN BAG APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE SENTENCE WITHIN AVAILABLE RANGE

Citation: Phillips v Regina [2007] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 13 July 2007
Judge(s): Giles JA; Latham J; Mathews AJ

Background

The appellant was convicted in the District Court of supplying a prohibited drug, specifically 84.61 grams of heroin, contrary to section 25 of the Drug Misuse and Trafficking Act 1985. The heroin was found concealed in a false bottom of a bag in the back seat of a car the appellant was driving when stopped by police on the Pacific Highway south of Ballina. The bag bore the appellant's name on an airline tag and contained his clothing and toiletries.

A female passenger also occupied the vehicle. Both appeared to police to be affected by drugs, and drug paraphernalia was found throughout the car. The appellant immediately denied knowledge of the heroin, and this denial was repeated in a formal police interview. The passenger died before the trial, and the appellant did not give evidence, instead relying on his recorded interview and evidence aimed at undermining the Crown's case.

The central factual dispute at trial was whether the appellant knew the heroin was in his bag. His case was that the passenger may have placed it there without his knowledge. The jury returned a guilty verdict and the appellant was sentenced to five years' imprisonment with a non-parole period of three years and nine months.

  • Whether the jury's verdict was reasonably open on the circumstantial evidence, given the appellant's denial of knowledge of the heroin
  • Whether the trial judge's directions to the jury on circumstantial evidence were adequate
  • Whether various complaints about the police investigation (including alleged destruction of evidence and failure to conduct DNA testing) were sufficient to create reasonable doubt
  • Whether the sentence of five years' imprisonment was within the available sentencing range
  • Whether the sentencing judge erred by taking into account related charges (driving under the influence and cannabis possession) without imposing separate sentences for them

Decision

The Court extended time for filing the appeal and application, noting there was no adequate explanation for the delay but that both parties had been fully heard and finality was best achieved by resolving the merits. The appeal against conviction was dismissed.

On the conviction grounds, the Court treated the various complaints about the police investigation (including alleged destruction of the blood-filled syringe and cannabis cigarette, failure to DNA-test the sharps kit, and concerns about blood sample handling) as amounts to a single overarching submission: that the Crown case was attended by sufficient doubt that a guilty verdict was unreasonable. The Court rejected that submission, finding the verdict was open to the jury on the evidence.

The Court also found no deficiency in the trial judge's directions on circumstantial evidence. The matters raised by the appellant regarding police conduct had been available to be explored by trial counsel, and the Court found no basis to conclude the jury could not be satisfied of guilt beyond reasonable doubt.

On sentence, the Court identified a technical error: the sentencing judge had taken into account two related charges (driving under the influence and cannabis possession) without separately sentencing the appellant for them. However, those charges were described as trifling in comparison with the heroin offence, and the Court was satisfied that no lesser sentence was warranted as a result. The sentence was within the available range, having regard to the quantity and street value of the heroin (approximately $60,000), the appellant's extensive Queensland criminal history, and the fact the offence was committed while on conditional liberty.

Orders Made

  • Time extended for filing the notice of appeal and application for leave to appeal
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but the sentence appeal dismissed

Key Takeaways

  • A guilty verdict for supply of a prohibited drug was upheld where the heroin exceeded the traffickable quantity, triggering the deemed-possession-for-supply provision under section 29 of the Drug Misuse and Trafficking Act 1985, and the jury rejected the accused's denial of knowledge
  • Where complaints about police investigation practice are raised on appeal, the Court of Criminal Appeal will assess whether they collectively create a reasonable doubt sufficient to render the verdict unreasonable, rather than treating each complaint as a separate ground
  • No error was established in the circumstantial evidence directions where trial counsel had the opportunity to explore the relevant matters through cross-examination
  • A sentencing error involving the failure to separately sentence an offender on related charges does not automatically warrant a lesser sentence; the Court will consider the significance of those charges relative to the principal offence
  • Comparable sentences and statistical data are of limited use in sentence appeals where the details of the individual offending and the offender's subjective circumstances differ materially

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25, 29

Cases:
- No cases were cited in the portions of the judgment provided