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Court of Criminal Appeal 4 June 2008

Stokes v Regina

[2008] NSWCCA 123

Also reported as (2008) 185 A Crim R 74
Drugs
CRIMINAL LAW SENTENCING SUPPLY OF PROHIBITED DRUGS WHETHER SENTENCE EXCESSIVE

Citation: Stokes v Regina [2008] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 4 June 2008
Judge(s): Giles JA, Barr J, Hall J

Background

The appellant was sentenced in the District Court following guilty pleas to three drug supply offences arising from a police controlled operation at a Gosford nightclub in December 2005 and January 2006. Undercover operatives made contact with him over several weeks, negotiating purchases of ecstasy, cocaine, and ketamine in small quantities for amounts ranging from $20 to $200.

The three charges comprised two individual supply counts (6 January and 13 January 2006) and one count of ongoing supply covering at least three separate transactions within a 30-day period for financial reward. The individual supply sentences of 18 months each ran concurrently, and the three-year sentence for ongoing supply was accumulated by one year on the non-parole period, producing an overall non-parole period of three years and a balance of term of one year.

The appellant sought leave to appeal against the sentences, arguing both that an aggravating factor had been wrongly applied and that the overall sentences were manifestly excessive.

  • Whether the sentencing judge erred in finding the offences were aggravated by being part of a planned or organised criminal activity under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, particularly given the Crown had indicated at the sentencing hearing that it did not press any aggravating features.
  • Whether the sentences imposed were manifestly excessive, having regard to the nature of the offences, the quantities involved, and the relationship between the individual supply counts and the ongoing supply charge.

Decision

On the first ground, the Court acknowledged an unusual procedural circumstance: the Crown had told the sentencing judge that it pressed no aggravating features under s 21A(2), yet the judge proceeded to find the planning and organisation factor present. The appellant argued this amounted to an error, as the parties had in effect agreed that no aggravation applied.

The Court rejected that argument. Barr J reasoned that s 21A(1) directs a court to take into account aggravating factors that are "relevant and known to the court," and that obligation is not discharged simply because a party chose not to press the point. What mattered was whether the finding was open on the evidence, not whether the Crown had submitted for it.

The Court found the aggravation finding was plainly open. The appellant had established himself as a dealer at the nightclub, provided his mobile number for future transactions, acted as an intermediary in one supply using a third party, and conducted multiple commercial transactions over several weeks. That pattern was consistent with an organised operation, even if modest in scale.

On the second ground, the Court considered whether the individual supply counts added substantially to the criminality already captured by the ongoing supply charge. Barr J acknowledged the overlap in timing but noted the appellant had prior convictions and prior prison terms, conducted the dealing for profit, and warranted significant personal and general deterrence. The Court found an overall sentence of four years with a three-year non-parole period was not excessive, and that no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal against the sentences granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to identify and apply relevant aggravating factors known to it, and a Crown indication that it does not press a particular factor does not relieve the court of that obligation.
  • A finding of planning and organisation under s 21A(2)(n) can be supported by relatively modest commercial drug dealing where the offender establishes an ongoing supply arrangement, uses intermediaries, and conducts repeated transactions over time.
  • The Court of Criminal Appeal confirmed that the test on a sentence appeal is whether a lesser sentence is "warranted in law," not merely whether a different sentence might reasonably have been imposed.
  • Overlap between individual supply counts and an ongoing supply charge does not automatically require full concurrency; accumulation of sentences remains appropriate where distinct criminality exists and deterrence is a significant sentencing objective.
  • In dismissing the appeal, the Court treated the appellant's commercial motivation, prior criminal history, and pattern of repeated dealing as factors supporting the weight given to both specific and general deterrence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Tadrosse [2005] NSWCCA 145
- R v Fahs [2007] NSWCCA 26
- R v Elyard (2006) NSWCCA 43
- R v Dougan [2006] NSWCCA 34
- R v Hewitt (2007) NSWCCA 353
- R v Smiroldo (2000) NSWCCA 120
- R v Hammoud [2000] NSWCCA 540