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Court of Criminal Appeal 9 February 2009

Chislett v R

[2009] NSWCCA 30

Drugs
CRIMINAL LAW GOING SUPPLY OF DRUGS GENERAL DETERRENCE PARITY OF SENTENCE

Citation: Chislett v R [2009] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 9 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The appellant was convicted in the District Court at Taree on three counts of ongoing supply of methylamphetamine for gain and one count of supply of cannabis, contrary to the Drug Misuse and Trafficking Act 1985. The offences arose from a series of transactions with an undercover operative between January and May 2007, involving eleven separate supplies of methylamphetamine and one supply of cannabis. For two of the three ongoing supply counts, the appellant sourced the drug from the home of a co-offender, Gary Cross.

The sentencing judge imposed cascading sentences producing a total term of three years with a non-parole period of two years and one month. The appellant sought leave to appeal on grounds that the sentence was manifestly excessive, that periodic detention had not been properly considered, and that adequate effect had not been given to a finding of special circumstances. A parity argument was also advanced by reference to the sentence imposed on Cross.

  • Whether the sentencing judge erred by failing to properly consider periodic detention as an alternative to full-time custody
  • Whether the sentencing judge gave adequate effect to the finding of special circumstances in setting the non-parole period
  • Whether the sentence was manifestly excessive given the applicant's personal circumstances
  • Whether the sentences gave rise to a justifiable sense of grievance when compared with the sentence imposed on the co-offender, Gary Cross

Decision

Periodic detention: The Court rejected the first ground. Consistent authority establishes that drug trafficking offences under s 25A of the Drug Misuse and Trafficking Act will only in exceptional circumstances attract a non-custodial sentence, and periodic detention does not constitute full-time custody for these purposes. Given the volume of offending and the appellant's criminal history, this was not a case where periodic detention warranted serious consideration. The sentencing judge was not required to give separate reasons for declining to impose it once adequate reasons for full-time custody had been provided.

Special circumstances and manifest excess: The Court found no error. A long and consistent line of authority requires deterrent sentences for drug dealers, particularly where s 25A is engaged, and the policy applies whether or not the offender profited. Against a maximum of twenty years on each of the first three counts, the total sentence of three years was not excessive. The sentencing judge had expressly found special circumstances and reduced the non-parole period below the statutory ratio, from two years and three months to two years and one month, acknowledging the appellant's first period of imprisonment and the need for post-release supervision.

Parity with Gary Cross: Cross was sentenced to an effective total of four and a half years with a non-parole period of three years. The Court examined the differences between the two cases: Cross was not sentenced on the first count, was older, had a less serious criminal record, and had psychiatric evidence supporting significant treatment needs. Comparing the proportional reductions in the respective non-parole periods from the statutory ratio, the Court found no meaningful disparity. The parity principle requires the absence of marked disparity producing a justifiable sense of grievance, and that threshold was not met here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the Drug Misuse and Trafficking Act 1985 s 25A, full-time custodial sentences are the norm for ongoing drug supply; only exceptional circumstances justify a non-custodial alternative, and periodic detention does not satisfy the requirement for full-time custody in this context.
  • A sentencing judge is not required to give separate reasons for declining periodic detention where adequate reasons for imposing full-time custody are recorded.
  • The parity principle, as confirmed in Postiglione v The Queen and Lowe v The Queen, requires a marked disparity producing a justifiable sense of grievance before appellate intervention is warranted; differences in counts charged, age, criminal history, and psychiatric circumstances are all relevant to that comparison.
  • In dismissing the appeal, the Court confirmed that the deterrence rationale for s 25A offences applies regardless of whether the offender made a profit from the supply.
  • Sufficient adjustment to the non-parole period to reflect special circumstances does not require any particular quantum of reduction, provided the sentencing judge has genuinely engaged with the relevant factors.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25A

Cases
- R v Ozer, NSWCCA 9 November 1993
- R v Clark, NSWCCA 15 March 1990
- R v Leslie (1991) 55 A Crim R 68
- R v Harmouche (2005) 158 A Crim R 398
- R v Niga, NSWCCA 13 April 1994
- R v Ly (2006) 161 A Crim R 173
- Postiglione v The Queen (1995-1996) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606