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10
Court of Criminal Appeal 11 February 2010

Quayle v R

[2010] NSWCCA 16

Drugs
CRIMINAL LAW SENTENCE NO FINANCIAL GAIN EVIDENCE OF SUBSTANTIAL REHABILITATION SENTENCES MANIFESTLY EXCESSIVE

Citation: Quayle v R [2010] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 11 February 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The appellant was a long-distance truck driver who was convicted after trial of one count of supplying methylamphetamine, and who pleaded guilty to a second count arising from a separate occasion approximately seven weeks later. Both incidents occurred in Dubbo in August and September 2006. The total quantity of methylamphetamine involved across the two offences was approximately 118 grams.

On the first occasion, 51.26 grams was found in the appellant's truck along with scales, small plastic bags, and $2,000 in cash. The appellant claimed the drugs were for personal use, but the jury convicted him on the basis of the statutory deeming provision for supply. On the second occasion, 67 grams was found when police stopped him while he was on bail. He admitted to police that some of the drugs were for other truck drivers who had given him money to obtain them.

The District Court sentenced the appellant to a total of 8 years imprisonment with an effective non-parole period of 6 years. The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the sentences were manifestly excessive.

  • Whether the sentences imposed by the District Court were manifestly excessive in all the circumstances
  • Whether appropriate weight was given to the absence of commercial profit as a motive for supply
  • Whether the sentencing judge gave sufficient weight to the appellant's substantial rehabilitation since the offences

Decision

The Court of Criminal Appeal found the original sentences were manifestly excessive and allowed the appeal. The court identified that both offences involved supply without financial gain to the appellant, which is a significant mitigating factor. The supply on the first occasion arose in the context of the appellant's personal use as a truck driver managing demanding work schedules, and the second occasion involved obtaining drugs for fellow drivers at cost, not for profit.

The court gave substantial weight to evidence of the appellant's rehabilitation. A psychologist's report from 2007 assessed his drug use as largely situational and tied to his employment as a long-haul driver, with minimal risk of recurrence outside that context. By the time of the appeal, correctional centre reports confirmed the appellant had maintained good behaviour, participated in drug and alcohol rehabilitation, and was managing the symptoms of post-traumatic stress disorder, depression, and anxiety previously diagnosed following serious truck accidents in 2002, 2003, and 2004.

The court also accepted that special circumstances existed justifying a reduction in the proportion of the sentence represented by the non-parole period. These arose from the partial accumulation of sentences and from the opinion of a correctional services psychologist that a longer period of supervised parole in the community would better support the appellant's ongoing recovery.

The court partially accumulated the two sentences to reflect that the offences were distinct events, and structured the new sentences to give a 25 per cent reduction for the utilitarian value of the guilty plea to the second offence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed and the appellant re-sentenced as follows:
  • For the offence of 29 September 2006: non-parole period of 18 months commencing 29 August 2008, expiring 28 February 2010; balance of term of 12 months; total sentence expiring 28 February 2011
  • For the offence of 10 August 2006: non-parole period of 18 months commencing 29 November 2008, expiring 28 May 2010; balance of term of 18 months; total sentence expiring 28 November 2011; appellant directed to be released on parole on expiration of non-parole period, subject to supervision under the Crimes (Administration of Sentences) Act 1999

Key Takeaways

  • Supply of a prohibited drug without financial gain is a recognised mitigating factor that a sentencing court must weigh appropriately when assessing the overall sentence.
  • Evidence of substantial post-offence rehabilitation, supported by psychological and correctional assessments, can contribute to a finding that original sentences were manifestly excessive on appeal.
  • Where an offender's drug use is assessed as situational and linked to a specific employment context, that character of use is relevant to evaluating both moral culpability and the risk of reoffending.
  • Partial accumulation of sentences for distinct episodes of offending, separated by a period of weeks, reflects the separate criminality involved while avoiding a crushing total sentence that fails to account for the totality principle.
  • Special circumstances justifying a reduced non-parole period proportion can arise from both the structural feature of partial accumulation and from clinical evidence that an extended supervised parole period would better support an offender's rehabilitation and treatment needs.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- R v Bloomfield (1998) 44 NSWLR 734
- R v Brown [1999] NSWCCA 349
- R v Busuttil [2000] NSWCCA 383
- R v El-Hayek [2004] NSWCCA 25
- R v Emanuel [2004] NSWCCA 267
- R v Galati [2003] NSWCCA 148
- R v Garner [2009] NSWCCA 79
- R v Groat [2001] NSWCCA 452
- R v Hemsley [2004] NSWCCA 228
- R v Holden [2002] NSWCCA 397
- R v Kenny [2000] NSWCCA 92
- R v Novakovic [2004] NSWCCA 437
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Regina v Gu [2006] NSWCCA 104
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v Fathers (unreported, Court of Criminal Appeal NSW, 31 August 1994)
- R v Langdon (unreported, Court of Criminal Appeal NSW, 18 November 1996)