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Court of Criminal Appeal 22 February 2010

HEROD v R

[2010] NSWCCA 17

DrugsFraud & dishonestyFirearms & weapons

Citation: Herod v R [2010] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 22 February 2010
Judge(s): James J, RS Hulme J, Hidden J

Background

The applicant was sentenced in the District Court following a guilty plea to three offences: knowingly taking part in the supply of methylamphetamine, knowingly dealing with the proceeds of crime, and possessing more than three unregistered firearms. The sentences imposed were four years imprisonment (with a two-year non-parole period) for the drug supply offence, 18 months fixed term for the proceeds offence, and six months fixed term for the firearms offence.

The offending came to light after police targeted drug distribution in the Tamworth region. When a search warrant was executed at premises shared by the applicant and his de facto partner, police found methylamphetamine, drug paraphernalia, approximately $26,000 in cash, and multiple unregistered firearms in a shed. The applicant's de facto partner was the primary dealer; the applicant maintained he had not personally sold drugs but was aware of and involved in her distribution operation.

The applicant sought leave to appeal his sentences, arguing the sentencing judge had overstated his role relative to his partner.

  • Whether the sentencing judge erred by finding only a "marginal distinction" between the applicant's role and that of his de facto partner, who was the primary drug supplier
  • Whether the sentences imposed on the applicant should have been lesser than those imposed on his partner, given her more active dealing role
  • Whether statistical sentencing data demonstrated that the sentence imposed on the first count was outside the appropriate range

Decision

The sole ground of appeal was that the sentencing judge overstated the applicant's involvement in the drug supply enterprise. The applicant argued his partner was responsible for sourcing the drugs, making deals, supplying product, and maintaining contact with customers, while his own role was peripheral. The Court rejected this characterisation.

RS Hulme J, with whom James J agreed, found the sentencing judge's assessment was open on the evidence. Although the applicant did not personally deal drugs, he provided the premises used for the operation, participated in a joint criminal enterprise, answered calls from buyers, and was aware the business was substantial. Critically, he received approximately 25 grams of methylamphetamine per week (valued at around $3,500) from the enterprise to feed his own habit, representing a significant personal benefit.

On the statistical evidence, the Court noted the sample of 20 offenders was too small and lacked contextual detail to be reliably representative of the range of offending under s 25(1) of the Drug Misuse and Trafficking Act 1985. The statistics were useful only in confirming the sentence imposed fell within the range of sentences given for comparable offences, not in demonstrating that the sentence was excessive.

RS Hulme J went further, expressing the view that the sentences imposed on both the applicant and his partner may not have gone far enough to deter commercial drug dealing of this nature and scale. Hidden J agreed the appeal should be dismissed but expressly declined to endorse that observation, noting the issue of sentencing adequacy was not argued before the Court and was not an appropriate matter to resolve in these proceedings.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A defendant's participation in a joint drug supply enterprise can warrant a substantial sentence even where that person was not the primary dealer, particularly where they provided premises for the operation and derived significant personal benefit from the proceeds.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's characterisation of the applicant's role as only "marginally" lesser than his partner's was open on the facts and did not constitute error.
  • Small statistical samples of sentencing outcomes carry limited weight in sentence appeals: where the dataset covers only 20 offenders and provides no detail about the circumstances of each offence, it cannot reliably establish that a sentence falls outside the appropriate range.
  • Judicial observations about the adequacy of sentences, made without argument from the parties on that question, are not binding and other members of the Court may decline to endorse them.
  • Where an offender benefits from a drug supply enterprise to the value of thousands of dollars per week, that benefit is a relevant consideration in assessing the degree of participation in the offence, even if the offender did not personally conduct transactions.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of prohibited drug, maximum 15 years)
- Crimes Act 1900 (NSW), s 193B(1) (dealing with proceeds of crime, maximum 20 years)
- Firearms Act 1996 (NSW), s 51D(1) (possession of unregistered firearms, maximum 10 years)

Cases: No specific cases were cited in the portions of the judgment provided.