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District Court 6 August 2007

Regina v Jeffrey Alister Cowper

[2007] NSWDC 353

Drugs
CRIMINAL LAW SENTENCE APPEAL DRUG OFFENCE MAXIMUM PENALTY IMPOSED BY MAGISTRATE NOT THE WORST CASE OF THIS OFFENCE PLEA OF GUILTY

Citation: Regina v Jeffrey Alister Cowper [2007] NSWDC 353
Court: District Court of New South Wales
Date: 6 August 2007
Judge(s): Cogswell SC DCJ

Background

The appellant was convicted on a guilty plea before a magistrate of possessing a precursor substance intended for use in the manufacture of a prohibited drug, contrary to s 24A of the Drug Misuse and Trafficking Act 1985. The conduct involved purchasing two lots of Demazin cold and flu tablets from separate pharmacies on the same day. Additional tablets of the same type were found in his car.

The magistrate sentenced the appellant to the maximum available summary term of two years imprisonment, with a non-parole period of eighteen months. The appellant, aged 46, had a history of drug convictions in Queensland relating to his own drug habit, and had been sentenced by the Supreme Court of Queensland in 2005 to a two-year-and-six-month suspended sentence for producing dangerous drugs.

The appellant appealed to the District Court, arguing that the non-parole period should be reduced to allow a longer period of supervised parole, which would better support his rehabilitation from drug addiction.

  • Whether the magistrate's sentence of two years imprisonment, being the jurisdictional maximum for the offence dealt with summarily, was excessive in the circumstances.
  • Whether the non-parole period of eighteen months was appropriate, or whether special circumstances existed to justify a different ratio between the non-parole period and the balance of term.
  • How the aggravating factor of committing the offence while subject to a suspended sentence in another jurisdiction should be weighed against rehabilitation considerations.

Decision

The District Court allowed the appeal, though it declined to reduce the two-year head sentence. Cogswell SC DCJ accepted the appellant's submission that the jurisdictional maximum of two years imposed by a magistrate does not carry the same significance as a maximum sentence imposed on indictment. Where a magistrate's sentencing discretion is capped below the full indictable maximum, a sentence at that cap is not necessarily a finding that the offence falls into the worst-case category.

The court identified the offence as serious, particularly because it was committed while the appellant was subject to a suspended sentence imposed by the Supreme Court of Queensland. That conditional liberty was treated as a significantly aggravating factor, justifying retention of the full two-year term.

However, the court found that special circumstances existed to warrant altering the ratio between the non-parole period and the balance of term. The appellant had no prior experience of supervised parole, was currently drug-free after serving approximately four months in custody, and was in a new relationship with a drug-free partner. The court considered that supervision during the parole period offered a meaningful opportunity for rehabilitation, particularly given the connection between the appellant's drug use and personal crises in his life.

The court also noted that the circumstances of the offence should be brought to the attention of the Supreme Court of Queensland, given that the fresh offence was committed during the currency of that court's suspended sentence.

Orders Made

  • Appeal allowed.
  • Sentence varied: two years imprisonment with a non-parole period of twelve months (reduced from eighteen months), leaving a parole balance of twelve months.
  • Special circumstances found, justifying the balance of term exceeding one-third of the non-parole period.
  • Sentence taken to have commenced on 3 April 2007; earliest release date set as 2 April 2008.
  • Appellant to be released to supervised parole on 2 April 2008, with a condition of supervision for the whole parole period and particular attention to his drug addiction.
  • Transcript of reasons and orders to be forwarded to the Supreme Court of Queensland Registry, drawing attention to that court's orders of 30 August 2005.

Key Takeaways

  • Where a magistrate is constrained by a jurisdictional sentencing cap lower than the full indictable maximum, a sentence at that cap does not carry the same meaning as a "worst case" finding on indictment.
  • Committing an offence while subject to a suspended sentence in another jurisdiction constitutes a significant aggravating factor for sentencing purposes, even though consequences in that other jurisdiction are a separate matter.
  • A lack of any prior supervised parole, combined with current drug-free status achieved through custody and a supportive personal environment, can amount to special circumstances justifying a reduced non-parole period.
  • The District Court exercised its power under s 20(2)(b) of the Crimes (Appeal and Review) Act 2001 to vary the sentence without reducing the head sentence, by adjusting only the non-parole period.
  • Where an offence engages a suspended sentence imposed by a court in another jurisdiction, the sentencing court may recommend that the relevant transcript be forwarded to that court for its consideration.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A, 31, 33AB
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW) (referenced in parole supervision condition)

Cases: No cases were cited in the judgment.