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Court of Criminal Appeal 14 March 2007

BARNES v R

[2007] NSWCCA 69

Drugs

Citation: Barnes v R [2007] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 14 March 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to two counts of deemed supply of prohibited drugs: 55.1 grams of methylamphetamine and 4.6 grams of MDMA (ecstasy). The drugs were found in a vehicle travelling from Sydney to the Central Coast. The appellant admitted ownership and was accepted to be an addict, with the sentencing judge finding that at least half the drugs were for his personal use.

Judge McLoughlin sentenced the appellant to a non-parole period of 15 months for the methylamphetamine offence and 10 months for the MDMA offence, both running concurrently from 2 June 2006. The starting points before the 25% guilty plea discount were 3 years and 4 months, and 2 years respectively. The judge found special circumstances due to the appellant's role as primary carer for his two young children and his rehabilitation prospects.

The appellant had an extensive criminal history dating back to 1975, including prior periods of full-time custody, and was on a conditional liberty bond at the time of the offences. He sought leave to appeal on the grounds that the sentencing judge misassessed the objective gravity of the offences and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the objective gravity of the offences as being "little less than the middle" of the relevant scale
  • Whether the overall sentence was manifestly excessive having regard to sentencing statistics, the quantities involved, and the appellant's subjective circumstances

Decision

The Court of Criminal Appeal accepted Ground 1, finding that the sentencing judge had erred in placing the offences near the middle of the scale. The quantity of methylamphetamine (55.1 grams) was only marginally above 20% of the 250-gram upper threshold under the Drug Misuse and Trafficking Act, and the MDMA quantity (4.6 grams) was approximately 4% of the relevant upper threshold. No other features elevated the offending toward the top of the range.

Despite this error, the court declined to interfere with the sentences on the ground of manifest excess. Hulme J analysed the Judicial Commission statistics more carefully than the appellant's counsel had, concluding that the sentences were not as high within the distribution as the appellant suggested and that the statistical comparison was of limited assistance without knowing the circumstances underlying each case.

The court gave significant weight to the fact that the appellant committed the offences while on conditional liberty, which constitutes a recognised aggravating circumstance regardless of whether the prior offending was similar or different in nature. His Honour also noted that the second offence involved a distinct drug type and that the judge's decision to make that sentence entirely concurrent was, if anything, lenient: authority supported at least partial accumulation.

The court acknowledged the appellant's difficult personal history, his role as a primary carer, and his genuine rehabilitation steps, but held that these mitigating factors did not bring the sentence outside the legitimate range of the sentencing discretion. General and specific deterrence supported a sentence of full-time imprisonment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court erred by placing drug supply offences at "little less than the middle" of the relevant scale where the quantities involved represented only a small fraction of the upper threshold, and no other features pointed toward the higher range.
  • Notwithstanding a demonstrated error in assessing objective gravity, the Court of Criminal Appeal will not intervene if the resulting sentence still falls within the legitimate exercise of sentencing discretion when all factors are considered together.
  • Committing an offence while on conditional liberty is treated as a serious aggravating circumstance, and this applies whether the prior conduct giving rise to that liberty was a similar offence, a different offence, or bail conditions.
  • Judicial Commission statistics on sentencing patterns are of limited utility when the underlying circumstances of the cases in the dataset are unknown; the Court of Criminal Appeal declined to draw firm conclusions from the statistical comparison alone.
  • Where an offender is convicted of two offences involving distinct prohibited drugs, sentencing principles support at least partial accumulation of sentences rather than full concurrency.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 3, 29 (deemed supply provisions; quantity thresholds)
- Criminal Procedure Act (NSW), s 166

Cases:
- R v Oliver (1980) 7 A Crim R 174
- R v Visconti (1982) 2 NSWLR 104