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Court of Criminal Appeal 2 August 2007

Postlewaight v R

[2007] NSWCCA 230

Drugs
SENTENCING APPEAL SENTENCE MANIFESTLY EXCESSIVE

Citation: Postlewaight v R [2007] NSWCCA 230
Court: New South Wales Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Tobias JA, Latham J, Mathews AJ

Background

The applicant pleaded guilty in the District Court to one count of being knowingly concerned in the supply of cocaine, specifically the delivery of 85.2 grams to a buyer on behalf of a third party. Two earlier deliveries of 28.4 grams each were taken into account on a Form 1 (a procedure allowing a court to consider additional offences at sentencing without recording separate convictions for them). The applicant's role in each transaction was limited to physically placing the drugs in the buyer's car, with no money exchanged between them and virtually no communication.

The sentencing judge, Sweeney DCJ, imposed a total sentence of four years imprisonment, comprising a non-parole period of three years and an additional term of one year. Her Honour found the applicant's conduct fell in the middle range of offending for this type of offence, declined to impose periodic detention, and found no special circumstances to justify departing from the statutory ratio between the non-parole period and the additional term.

The applicant sought leave to appeal on the grounds that the sentencing judge had overestimated his objective criminality, given insufficient weight to his personal circumstances, erred in not finding special circumstances, and had imposed a manifestly excessive sentence.

  • Whether the sentencing judge overestimated the applicant's role in the drug supply offences
  • Whether sufficient weight was given to the applicant's subjective circumstances, including his drug addiction, dysfunctional childhood, rehabilitation steps, and strong community ties
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a longer-than-standard additional term
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal accepted that the sentencing judge had placed the applicant too high on the spectrum of offending. The applicant was a courier acting under direction, with no prior relationship with the buyer, no money received, and no conversation beyond confirming identity. The Court found his role was closer to the lower end of the range for this type of offence, not the middle range as the sentencing judge had found.

The Court also found the sentence was out of step with sentencing statistics for comparable offences. The statistics showed that total sentences above five years and non-parole periods above three years and six months were not imposed in this category of case. The sentencing judge's apparent starting point, before applying the guilty plea discount, was a total sentence of approximately five years and four months with a non-parole period of four years, which the Court found was outside the general pattern.

The Court further held that the applicant's personal circumstances, particularly his long-standing drug addiction linked to a difficult childhood, his genuine rehabilitation steps taken both before and during custody, and his need for community support after release, collectively constituted special circumstances. This warranted a longer additional term relative to the non-parole period than the statutory norm would otherwise produce.

On resentencing, the Court imposed a non-parole period of one year with an additional term of two years, reducing the total sentence from four years to three years and substantially reducing the minimum time to be served.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Sweeney DCJ on 13 October 2006 quashed
  • In lieu, imprisonment comprising a non-parole period of one year from 8 October 2006 (expiring 7 October 2007), with an additional term of two years commencing 8 October 2007 (expiring 7 October 2009)

Key Takeaways

  • A distinction exists between those who actively supply drugs and those who are knowingly concerned in supply by another: a courier who delivers drugs under direction, has no financial dealings with the recipient, and exercises minimal independent agency occupies a lower position on the culpability spectrum.
  • The Court of Criminal Appeal confirmed that sentencing statistics, while not determinative, can demonstrate when a sentence falls outside the general pattern and support a finding of manifest excess.
  • Where an applicant's drug addiction is causally connected to the offending and is itself traceable to a demonstrably dysfunctional upbringing, those factors can contribute to a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a longer additional term to support post-release rehabilitation.
  • Rehabilitation steps taken after charge but before sentence, and continuing in custody, remain relevant subjective considerations at the resentencing stage.
  • An early plea of guilty, entered in the Local Court, entitled the applicant to a discount at the maximum end of the available range, and this was a further factor in the sentencing calculus on appeal.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

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