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Court of Criminal Appeal 25 May 2010

Scott v R

[2010] NSWCCA 103

Drugs
CRIMINAL LAW SENTENCE APPEAL DRUG OFFENCE

Citation: Scott v R [2010] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 25 May 2010
Judge(s): Allsop P, Grove J, Hislop J

Background

The appellant was convicted by jury of supplying a prohibited drug, namely 27.1 grams of methylamphetamine, at Lightning Ridge in September 2007. The drug was found during a police search of his home. The appellant admitted possession but claimed the drug was for personal use, a claim the jury rejected.

The appellant was 29 years old at sentencing, had no significant criminal history, and had strong family support. The sentencing judge in the District Court imposed a non-parole period of one year and ten months, with a balance of term of eight months, to run concurrently with shorter sentences for related minor drug possession offences.

The appellant sought leave to appeal on three grounds: that the sentence was manifestly excessive, that the sentencing judge erred in declining to find special circumstances, and that the sentencing judge wrongly treated full-time custody as the only available sentencing option.

  • Whether the sentence of imprisonment was manifestly excessive in light of the objective seriousness of the offence and the appellant's subjective circumstances
  • Whether the sentencing judge erred by failing to find special circumstances justifying a variation to the standard non-parole period ratio
  • Whether the sentencing judge incorrectly applied a legal rule requiring exceptional circumstances before any sentence other than full-time custody could be imposed, without first determining whether the appellant was substantially involved in the supply of prohibited drugs

Decision

The Court of Criminal Appeal identified a material error of principle in the sentencing judge's approach. The judge had applied the rule that exceptional circumstances are required before a non-custodial sentence can be imposed, but that rule applies only where the offender was substantially involved in the supply of prohibited drugs. The sentencing judge made no express finding on whether the appellant's involvement reached that threshold.

The Court held that on the evidence before the sentencing judge, it could not be said that the only available conclusion was one of substantial involvement in supply. Because that threshold finding had not been made, the sentencing judge had wrongly constrained his discretion by demanding exceptional circumstances. That error of principle entitled the Court of Criminal Appeal to resentence.

On the question of special circumstances, the Court found none. However, taking into account all of the appellant's circumstances, including further evidence of rehabilitation during the period already served in custody, the Court concluded that a lesser sentence was warranted.

The Court did not need to finally determine the manifest excess ground, given that the error of principle provided a sufficient basis to intervene and resentence.

Orders Made

  • Leave to appeal granted
  • Sentence on the indictment quashed
  • In lieu, the appellant sentenced to imprisonment for a non-parole period of one year and three months, commencing 4 May 2009 and expiring 3 August 2010, with a balance of term of five months expiring 3 January 2011
  • Directed release on parole at the end of the non-parole period, being 3 August 2010

Key Takeaways

  • The requirement for exceptional circumstances before imposing a sentence other than full-time custody in drug supply cases applies only where the offender was substantially involved in the supply of prohibited drugs. It is not a threshold that applies automatically to all supply offences.
  • A sentencing court that imposes the "exceptional circumstances" requirement without first making a finding of substantial involvement in supply commits an error of principle, which on appeal entitles a higher court to resentence.
  • Where an error of principle is established, the Court of Criminal Appeal may resentence even without finally resolving all other grounds of appeal, including manifest excess.
  • Evidence of rehabilitation accrued during time already served in custody is a relevant consideration on resentencing by an appellate court.
  • In dismissing the special circumstances ground, the Court confirmed that evidence of rehabilitation, family support, and clean drug tests, while positive subjective factors, does not automatically satisfy the threshold for a finding of special circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), including ss 25(1) and 29
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Clarke v R [2009] NSWCCA 49
- R v Gu [2006] NSWCCA 104
- R v Gip [2006] NSWCCA 115; (2006) 161 A Crim R 173
- R v Pilley (1991) 56 A Crim R 202
- R v Cacciola (1998) 104 A Crim R 178