Citation: Derley v Regina [2007] NSWCCA 361
Court: NSW Court of Criminal Appeal
Date: 21 December 2007
Judge(s): Handley AJA, Hoeben J, Smart AJ
Background
The appellant was stopped by police while driving in West Pennant Hills in July 2003. A search of his vehicle revealed a plastic bag containing 495 off-white tablets, which analysis later confirmed contained MDMA (3,4-methylenedioxymethamphetamine), ketamine, and trace amounts of methylamphetamine. The MDMA concentration was very low, averaging 2.7 milligrams per tablet, well below the typical range of 100 to 160 milligrams per tablet.
The appellant was convicted after a judge-alone trial of supplying not less than a commercial quantity of MDMA under the Drug Misuse and Trafficking Act 1985. He received a sentence of four years with a non-parole period of three years for the drug supply offence, alongside sentences for three serious break-and-enter offences. A previously suspended sentence of 18 months for manufacturing a prohibited drug was also revoked, bringing his total effective sentence to seven years and two months with a non-parole period of six years and six months.
The appellant challenged both his conviction and the overall severity of the sentences imposed.
Legal Issues
- Whether there was sufficient evidence to establish that the appellant knew or believed the tablets contained a prohibited drug, so as to support the conviction for supply of a commercial quantity of MDMA.
- Whether the sentencing judge failed to have adequate regard to the accumulation of the revoked bond sentence alongside the sentences for drug supply and the three break-and-enter offences.
- Whether lesser non-parole periods or less severe sentences were warranted on any of the counts.
Decision
On the conviction appeal, the central question was whether the trial judge was entitled to infer, beyond reasonable doubt, that the appellant knew or believed the tablets contained a prohibited substance. The court examined the agreed facts: the appellant had physical possession of 495 tablets in a plastic bag and declined to answer any questions when interviewed. The trial judge held that the only rational inference available from those circumstances was that the appellant knew the tablets contained a prohibited drug, applying principles from Pereira v DPP regarding wilful blindness as an evidentiary step towards establishing actual knowledge.
The appellant argued that the extremely low concentrations of MDMA, ketamine, and methylamphetamine were equally consistent with manufacturing contamination, and that the tablets could have been ketamine tablets, vitamins, or performance-enhancing supplements. The Court of Criminal Appeal rejected those arguments. The suggestion that the prohibited substances were mere contaminants was characterised as farfetched, given that each tablet was self-contained and the substances appeared consistently across the sample tested. The sheer number of tablets further undermined the contamination hypothesis.
On the sentence appeal, the court found that the sentencing judge had not adequately addressed the accumulation of the revoked suspended sentence alongside the other penalties. However, upon examining the actual sentences imposed for the three break-and-enter offences, the court concluded they were already very light, with effective non-parole periods that were surprisingly low given the scale and planning involved in those crimes. Much longer non-parole periods and less overlapping would not have been erroneous.
Because there had been no Crown appeal against any of the sentences, the court declined to extend the sentence. It found that imposing lesser non-parole periods on any count was not warranted and that no less severe sentence was available in law, so the sentence appeal was dismissed.
Orders Made
- Conviction appeal dismissed.
- Leave to appeal against sentences granted.
- Sentences appeal dismissed.
Key Takeaways
- Where a defendant is found in physical possession of a large quantity of tablets and declines to answer police questions, the inference that the defendant knew the tablets contained a prohibited substance may be the only rational inference available on the evidence.
- Wilful blindness is not a substitute for proof of the defendant's actual state of mind; it functions as a step in the reasoning process toward establishing knowledge, consistent with the High Court's approach in Pereira v DPP.
- Extremely low concentrations of a prohibited substance in tablets do not, without more, support a reasonable inference of contamination or ignorance, particularly where the tablets are numerous and each is self-contained.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that it will not reduce sentences that are already at the lenient end of the range, even where the overall sentencing structure contains analytical errors, provided no Crown appeal has been brought and no lesser sentence is warranted in law.
- A sentencing court is required to have regard to the accumulation of a revoked bond and consequential sentence alongside other sentences being imposed, and a failure to do so may constitute error, even if that error does not ultimately result in the sentence being disturbed.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29
Cases:
- Pereira v DPP (1988) 63 ALJR 1