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Court of Criminal Appeal 16 June 2010

SANTOS v R

[2010] NSWCCA 127

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE TIME CUSTODY WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: SANTOS v R [2010] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 16 June 2010
Judge(s): Giles JA, Hulme J, Latham J

Background

The applicant pleaded guilty in the District Court to two counts of supplying MDMA (ecstasy). The first count arose from an actual supply of 15 tablets to an undercover police officer at a hotel. The second count was a deemed supply charge, arising from the discovery of approximately 250 tablets (weighing 75.28 g) found during a subsequent search of the applicant's home.

The sentencing judge imposed a fixed term of four months for the first count and a sentence of two years and four months (with a non-parole period of 14 months) for the second count, accumulated in part, resulting in an aggregate non-parole period of 15 months. The applicant was 25 years old, had no prior convictions, held university qualifications, had secured full-time employment as a systems analyst, and presented extensive evidence of good character and community involvement.

A central feature of his subjective case was a childhood cancer diagnosis and the ongoing psychological burden of fearing its recurrence. He appealed on two grounds: that the sentencing judge wrongly declined to find his circumstances sufficiently exceptional to justify a non-custodial sentence, and that the sentences were manifestly excessive.

  • Whether the applicant's subjective circumstances, including his cancer history, rehabilitation prospects, and character, were sufficiently exceptional to warrant a sentence other than full-time custody
  • Whether the sentences imposed were manifestly excessive, having regard to the nature and quantity of the drugs involved and applicable sentencing ranges

Decision

The Court of Criminal Appeal dismissed the appeal on both grounds. On the exceptional circumstances question, Latham J (with whom Giles JA and Hulme J agreed) found that the connection between the applicant's personal vulnerabilities, including his cancer anxiety and social difficulties, and his decision to supply drugs was not sufficiently direct. The Court distinguished between personal factors that might explain recreational drug use and a deliberate, calculated decision to supply drugs to others in order to fund one's own consumption without drawing on legitimate income.

The Court rejected the proposition that the applicant was somehow compelled to supply drugs because of personal drug use. The evidence showed he had purchased approximately 250 tablets and planned to sell around half at roughly double the purchase price, effectively breaking even and obtaining his own supply for free. This was characterised as a conscious financial decision rather than conduct driven by exceptional personal circumstances.

On manifest excess, the Court found no error. The four-month fixed term for the actual supply (which involved slightly more than three times the indictable quantity) could not be said to be excessive. The sentence on the deemed supply charge, involving 60 times the indictable quantity, fell in the lower half of the range indicated by Judicial Commission statistics for first-time offenders pleading guilty in the District Court. The reduction of the non-parole period to approximately half the total sentence appropriately reflected the applicant's strong subjective case.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A childhood illness and the ongoing psychological fear of its recurrence did not, on the facts of this case, constitute circumstances sufficiently exceptional to justify departing from full-time custody for serious drug supply offences.
  • The Court of Criminal Appeal drew a clear distinction between personal factors that may contribute to illicit drug use and those same factors being relied upon to explain or mitigate deliberate commercial drug supply activity.
  • Where an offender supplies drugs as a calculated means of obtaining free drugs for personal consumption, rather than out of financial desperation or personal compulsion, that decision is treated as a voluntary and considered one for sentencing purposes.
  • In dismissing the manifest excess ground, the Court confirmed that a significant reduction in the non-parole period relative to the total sentence can itself reflect the weight given to strong subjective circumstances.
  • Sentencing ranges drawn from Judicial Commission statistics were used to assess whether the sentence for the deemed supply count (involving 60 times the indictable quantity, with a Form 1 matter) fell within an appropriate range for a first-time offender pleading guilty.

Legislation and Cases Referenced

Cases cited:
- R v Gip; R v Ly [2006] NSWCCA 115
- R v Saba [2006] NSWCCA 214
- R v Cacciola (1998) 104 A Crim R 178

Legislation: The offences carried a maximum penalty of 15 years imprisonment under the applicable NSW drug supply provisions (specific Act not identified in the judgment text).