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Court of Criminal Appeal 4 December 2007

CUMMINGS v R

[2007] NSWCCA 347

Drugs

Citation: Cummings v R [2007] NSWCCA 347
Court: NSW Court of Criminal Appeal
Date: 4 December 2007
Judges: Grove J, Hulme J, Simpson J

Background

The appellant was convicted in the District Court of supplying methylamphetamine on 10 February 2005 at Dubbo. Police searched her premises and found 19.28 grams of methylamphetamine, some packaged in small resealable bags, along with $2,365 cash. Two persons found at the premises gave evidence of having received drugs from her that morning.

Acting Judge Woods sentenced the appellant to a total term of six years imprisonment, with a non-parole period of four years, commencing 29 October 2006. The appellant had a significant prior record for drug offences, including earlier supply convictions in 1996 and further supply offences in 2006 for which she was separately sentenced.

The appellant sought leave to appeal the sentence on seven grounds, broadly challenging the sentencing judge's reasoning and the overall severity of the sentence.

  • Whether the sentencing judge erred in treating the appellant's prior drug offences as an aggravating factor
  • Whether the sentencing judge erred in failing to make a direct finding about whether the appellant was a user, a dealer, or both
  • Whether the sentencing judge failed to adequately address the psychological evidence, including findings consistent with clinical depression
  • Whether the sentencing judge failed to give adequate weight to the appellant's subjective circumstances and prospects for rehabilitation
  • Whether the sentencing judge erred in applying section 44 of the Crimes (Sentencing Procedure) Act by failing to find special circumstances, resulting in a parole period that exceeded the statutory ratio
  • Whether the sentencing judge erred in arriving at too high a starting point, including in his treatment of proportionality and the maximum penalty
  • Whether the sentence was manifestly excessive

Decision

Ground 1 (prior record as aggravating factor): The Court held there was no error. A prior criminal record is a legitimate sentencing consideration, not merely relevant to claims for leniency. Citing Veen v R (No. 2), the Court confirmed that a record can illuminate moral culpability, demonstrate a dangerous propensity, or show a continuing attitude of disobedience warranting greater deterrence and retributive weight. The brevity of the sentencing judge's remarks on this point did not establish that he gave the record more weight than it deserved.

Ground 2 (failure to find user/dealer): The Court rejected this ground. The sentencing judge found that the appellant was operating a regular business of supply. Given that the appellant had elected to give no evidence, including evidence about the extent of her own drug use, any omission in making a formal finding on this point was not a sentencing error.

Grounds 3 to 6: The Court dismissed grounds concerning the psychological evidence, rehabilitation, proportionality, and the treatment of the maximum penalty, finding no basis for any of those complaints. However, the Court identified an error in the structure of the sentence: the balance term (parole period) of two years exceeded the statutory ratio set out in section 44 of the Crimes (Sentencing Procedure) Act, and no special circumstances had been found to justify departing from that ratio.

Ground 7 (manifest excess): The Court declined to find the sentence manifestly excessive overall, agreeing with the sentencing judge's observations about the serious social harm caused by drug trafficking and the appellant's status as a recidivist. The Court intervened only to reduce the additional (balance) term, bringing the total sentence to five years and five months with the non-parole period of four years unchanged.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; original sentence quashed
  • Appellant re-sentenced to imprisonment with a non-parole period of four years, commencing 29 October 2006 and expiring 28 October 2010
  • Balance term of one year and five months, commencing 29 October 2010
  • First date of parole eligibility specified as 28 October 2010

Key Takeaways

  • A prior criminal record is a legitimate aggravating consideration at sentencing, going beyond merely affecting a claim for leniency. As confirmed by Veen v R (No. 2), it can demonstrate a continuing attitude of disobedience and support greater weight being given to retribution, deterrence, and community protection.
  • Where an offender elects to give no evidence at sentence, including evidence about personal circumstances relevant to a ground of appeal, that choice limits the weight of any complaint that the sentencing judge failed to make findings in their favour.
  • Under section 44 of the Crimes (Sentencing Procedure) Act, the balance (parole) term must not exceed one-third of the non-parole period unless special circumstances are found. A sentence that exceeds this ratio without such a finding constitutes a correctable error even where the overall sentence is not manifestly excessive.
  • The Court of Criminal Appeal left the non-parole period undisturbed, reducing only the additional term. A finding that one element of a sentence is incorrectly structured does not necessarily render the entire sentence excessive.
  • No error was established in the sentencing judge's failure to explicitly characterise the appellant as a "user-dealer" rather than a commercial supplier, where the surrounding factual findings were otherwise adequate and the appellant had not given evidence on the point.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases:
- Veen v R (No. 2) (1987-1988) 164 CLR 456
- R v Wickham [2004] NSWCCA 193
- R v McNaughton [2006] NSWCCA 242