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Court of Criminal Appeal 16 March 2007

LU v R

[2007] NSWCCA 74

Drugs

Citation: LU v R [2007] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2007
Judges: McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to supplying 24.07 grams of heroin, an offence arising under the deemed supply provisions of the Drug Misuse and Trafficking Act. Police had found the heroin at premises where he was living, along with cash and foils containing a smaller quantity adjacent to his hands. Despite his claim in a recorded interview that the drugs were for personal use, strong evidence from an experienced drug detective pointed to him being a dealer.

Judge Maguire sentenced the appellant to a total term of 4 years and 8 months, with a non-parole period of 3 years and 7 months, commencing 2 November 2005. A 20 per cent discount was applied for the guilty plea. The sentencing judge found no evidence of contrition beyond the plea and assessed the appellant's prospects of rehabilitation as poor.

The appellant brought this application for leave to appeal, arguing the sentence was too high given the relatively modest quantity of heroin involved.

  • Whether the sentencing judge's starting point, before the guilty plea discount, was too high for an offence involving 24 grams of heroin.
  • Whether the resulting sentence of 4 years and 8 months was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Hulme J, with whom McClellan CJ at CL and Hislop J agreed, acknowledged that both the starting point (5 years and 10 months) and the final sentence were relatively high for a supply offence involving only 24 grams. Statistical data confirmed the sentence fell within the top 14 per cent for comparable offences in the higher courts between 2002 and 2006, with the non-parole period in the top 4 per cent.

However, Hulme J emphasised that quantity is not the only relevant sentencing factor. The evidence strongly supported a finding that the appellant was actively dealing, not merely using. His stated daily heroin habit, his receipt of social services payments, and his limited employment history made it implausible that he had legitimately funded the $4,500 block of heroin from sources other than dealing.

The appellant's subjective circumstances offered little mitigation. He had a lengthy criminal record spanning more than a decade, with prior convictions for supply, multiple earlier penalties of almost every kind, and a failed Drug Court program. He was still subject to conditional liberty at the time of the offence. The sentencing judge's findings on deterrence, retribution and poor rehabilitation prospects were well supported on the material.

The Court found no error in the exercise of the sentencing discretion. The sentence, while high, was within the range legitimately open to Judge Maguire given the totality of circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics, while a useful guide, do not determine the outcome of a sentence appeal; the primary question is whether the sentence properly reflects the relevant legislative provision given all the circumstances.
  • Quantity of drug is one factor among many. A relatively modest weight of heroin does not automatically attract a lower sentence where the evidence supports the conclusion that the offender was dealing rather than using.
  • A criminal history that includes prior supply convictions, failed rehabilitative programs, and offending while subject to conditional liberty all legitimately bear on the weight given to personal deterrence and rehabilitation prospects.
  • Under the Drug Misuse and Trafficking Act, the relevant maximum penalty against which to assess the seriousness of an offence is the maximum for the charge actually brought, not the maximum applicable to summary proceedings for smaller quantities. The Court cited Markarian v R (2005) 79 ALJR 31 on this point.
  • No error was established merely because a sentence falls toward the upper end of the statistical range for comparable offences, provided the offender's individual circumstances justify the departure.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act (NSW), ss 3, 29 (deemed supply provisions; maximum penalties)

Cases
- Markarian v R (2005) 79 ALJR 31
- R v Cicekdag [2004] NSWCCA 357
- Veen v R (No 2) (1987–1988) 164 CLR 465