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19
Court of Criminal Appeal 14 August 2007

Mirza v R

[2007] NSWCCA 248

Drugs
CRIMINAL LAW ONGOING DRUG SUPPLY OF COCAINE WHETHER MANIFESTLY EXCESSIVE.

Citation: Mirza v R [2007] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 14 August 2007
Judges: McClellan CJ at CL, Howie J, Harrison J

Background

The applicant, a 47-year-old man with no prior criminal record, was convicted of ongoing supply of cocaine contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. He had supplied cocaine to an undercover police officer on three separate occasions in Double Bay between late July and mid-August 2005, each time providing approximately one ounce of cocaine for $7,500. The applicant's account was that he acted as an intermediary between the officer and a supplier he knew, receiving only $250 per transaction, and that he committed the offences to fund renewal of his security licence.

The District Court sentenced the applicant to a total term of six years imprisonment, comprising a non-parole period of three and a half years and a balance of term of two and a half years. The sentencing judge applied a 40 per cent discount for the utilitarian value of the guilty plea and the applicant's assistance to authorities.

On appeal, the applicant abandoned his first ground and pressed only the remaining ground: that the sentence was manifestly excessive.

  • Whether the sentence of six years imprisonment for ongoing cocaine supply was manifestly excessive.
  • Whether the sentencing judge correctly assessed the objective seriousness of the offending as above the mid-range for a s 25A(1) offence.
  • Whether the 40 per cent discount for the guilty plea and assistance to authorities was appropriate.

Decision

Howie J (with whom McClellan CJ at CL and Harrison J agreed) identified that the 40 per cent discount applied by the sentencing judge was overly generous. The applicant had agreed to give evidence against those involved in the supply, but there was no suggestion that any prosecution was likely to follow from his information. At the time of sentence, more than 12 months after arrest, the information was of little more than intelligence value.

Despite this finding on the discount, the Court declined to conduct a full re-sentencing exercise. Instead, it assessed whether the sentence actually imposed was manifestly excessive in light of the guilty plea and assistance given, taking the sentence on its face rather than unpacking how it was derived.

On objective seriousness, the Court found it was open to the sentencing judge to place the offending above the mid-range. Key factors included the significant quantity of cocaine supplied across three transactions (approximately one ounce each time), the applicant's active role in setting up the transactions, the profit motive, and the Court's view that the applicant regarded the undercover officer as an ongoing customer rather than a one-off purchaser. The applicant's complaint about the quality of the final supply and his suggestion that the customer deserved a refund indicated a continuing commercial relationship.

The Court also declined to treat the modest reward the applicant claimed to have received as meaningful mitigation. Where a person has actively assisted in distributing large quantities of a serious drug into the community, the low level of their personal financial reward does not substantially reduce the gravity of the offending. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of where particular offending falls within the range of criminality encompassed by s 25A is a question of fact on which minds may reasonably differ, and will not be disturbed unless clearly erroneous.
  • The quantity of drug supplied remains a significant factor in assessing the seriousness of an ongoing supply offence, even where the statute targets dealers whose individual transactions are small.
  • A 40 per cent discount for a guilty plea combined with assistance to authorities was found to be overly generous where the assistance was of limited practical value and unlikely to lead to any prosecution.
  • Where an offender's information to police is of little more than intelligence value at the time of sentencing, the level of discount for assistance should reflect that limited utility rather than the original offer to cooperate.
  • The low level of personal financial reward received by an offender does not constitute substantial mitigation where the conduct actively facilitated the distribution of large quantities of drugs into the community.

Legislation and Cases Referenced

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

Cases:
- R v Sukkar [2006] NSWCCA 92
- R v Smiraldo (2000) 112 A Crim R 47
- Smith v R [2007] NSWCCA 138
- Wong v The Queen (2001) 207 CLR 584
- Truong v R [2006] NSWCCA 318
- R v Sciberras (2006) 165 A Crim R 532
- R v CBK [2002] NSWCCA 457
- Mulato v R [2006] NSWCCA 282
- Dang v R [2005] NSWCCA 430