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Court of Criminal Appeal 5 November 2008

Stuart Leslie WOOD v R

[2008] NSWCCA 257

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SUPPLY PROHIBITED DRUGS PLEAS OF GUILTY OBJECTIVE SERIOUSNESS OF THE OFFENCE UTILITY OF STATISTICS ON SENTENCING

Citation: Stuart Leslie Wood v R [2008] NSWCCA 257
Court: New South Wales Court of Criminal Appeal
Date: 5 November 2008
Judges: McClellan CJ at CL, Nettle AJA, Simpson J

Background

The applicant pleaded guilty in the District Court at Lismore to three counts of supplying prohibited drugs under the Drug Misuse and Trafficking Act 1985. The offences involved supplying commercial quantities of MDMA (ecstasy) and indictable quantities of ketamine to an undercover police operative over a one-month period in late 2005.

The sentencing judge, Black DCJ, imposed a head sentence of six years imprisonment on the most serious count, with a non-parole period of three and a half years. That count carried a maximum penalty of 20 years and a standard non-parole period of 10 years.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, arguing that insufficient weight had been given to his strongly favourable subjective circumstances and that the sentence was out of step with sentencing patterns for comparable offences.

  • Whether the sentence imposed on count 1 was manifestly excessive given the objective seriousness of the offence and the applicant's subjective circumstances
  • What weight should be given to sentencing statistics maintained by the Judicial Commission when imposing and reviewing sentences
  • Whether the sentencing judge gave appropriate consideration to the quantity of drug involved relative to comparable offences

Decision

By majority (Simpson J, with Nettle AJA agreeing), the Court found the sentence on count 1 was manifestly excessive. Simpson J observed that the quantity of MDMA supplied (321.4 grams) sat towards the lower end of the commercial quantity range, well short of the large commercial quantity threshold. Despite this, the applicant had been sentenced towards the upper end of the range at which offenders are ordinarily sentenced in practice.

Simpson J found this outcome was not explained by any aggravating features. To the contrary, the applicant had no prior criminal history, his prospects of rehabilitation were assessed as "unusually good," and his subjective case was described as strong. These favourable factors pointed against a sentence more appropriate to a more serious category of offence.

On the utility of sentencing statistics, Simpson J treated them as a relevant reference point, particularly where a sentence sits near the top of the statistical range despite the offence being near the bottom of the relevant drug quantity band. McClellan CJ at CL, dissenting, cautioned that over-reliance on statistics risks inappropriately confining the sentencing range and may fail to reflect the statutory maximum and standard non-parole period. His Honour considered the original sentence remained within the appropriate range.

The majority reduced the head sentence by six months, resulting in a non-parole period of three years and a balance of term of two and a half years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed on count 1 quashed
  • In lieu thereof, the applicant sentenced to imprisonment with a non-parole period of 3 years commencing 16 November 2005 and expiring 15 November 2008, with a balance of term of 2.5 years expiring 15 May 2011
  • Sentences on counts 2 and 3 confirmed

Key Takeaways

  • Sentencing statistics compiled by the Judicial Commission are a relevant tool for assessing the appropriateness of a sentence, but the majority and dissent in this case reflect an ongoing tension about how much weight they should carry.
  • A sentence may be manifestly excessive where it falls near the top of the statistical range for an offence that is objectively near the bottom of the relevant drug quantity band, particularly in the absence of aggravating circumstances.
  • Under the Drug Misuse and Trafficking Act 1985, the commercial quantity of MDMA spans a wide range; where a supply sits towards the lower end of that band, that position should be reflected in the sentence imposed.
  • McClellan CJ at CL (dissenting) emphasised that sentencing statistics cannot be allowed to effectively cap the available range, as this risks displacing the role of both the statutory maximum and the standard non-parole period.
  • Strongly favourable subjective circumstances, including the absence of prior convictions and an assessment of unusually good rehabilitation prospects, are relevant factors that can support a finding of manifest excess when a sentence does not reflect them.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(2), Pt 3 Div 3, Pt 4 Div 1A

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
- R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340
- R v Letteri (NSWCCA, 18 March 1992, Unreported)
- R v Engert (1995) 84 A Crim R 67
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Champion (1992) 64 A Crim R 244
- R v Wright (1997) 93 A Crim R 48
- R v Fahda [1999] NSWCCA 267
- R v Benitez [2006] NSWCCA 21