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Court of Criminal Appeal 22 September 2010

R v Barlow

[2010] NSWCCA 215

Also reported as 204 A Crim R 111
Drugs
CRIME SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Barlow [2010] NSWCCA 215
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2010
Judge(s): Allsop P, Price J, McCallum J

Background

A 19-year-old man pleaded guilty in the Local Court to supplying a commercial quantity of a prohibited drug (ecstasy tablets) under s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The circumstances leading to the offender's arrest were unusual. His parents, having found $14,000 in cash in his car and suspected drug involvement, contacted police. When the offender arrived home, he voluntarily disclosed $120,625 in cash and gave police a full account of two drug transactions in a 3am interview. Those transactions had not previously been under police investigation and were only uncovered through the offender's cooperation.

In the District Court, Charteris DCJ sentenced the offender to two and a half years imprisonment with a 15-month non-parole period, to be served by way of periodic detention. The Crown appealed, arguing the sentence was manifestly inadequate and that the sentencing judge had given inadequate weight to the objective seriousness of the offence and had erred in treating the parents' decision to contact police as a relevant sentencing factor.

  • Whether the sentencing judge gave inadequate weight to the objective seriousness of supplying a commercial quantity of a prohibited drug
  • Whether it was an error to take into account the parents' act of reporting their son's conduct to police as a sentencing consideration
  • Whether the overall sentence, including the order for periodic detention rather than full-time custody, was manifestly inadequate
  • Whether the structure of the non-parole period contained an error warranting correction

Decision

The Court of Criminal Appeal declined to interfere with the substance of the sentence, finding that the sentencing judge had not overlooked the objective seriousness of the offence and had not erred in the factors he took into account. Price J acknowledged the sentence was lenient, and one he personally would not have imposed by way of periodic detention, but the Crown failed to establish either discrete error or manifest inadequacy.

On the question of the parents' intervention, all three judges agreed the sentencing judge was entitled to treat it as a relevant factor. Allsop P reasoned that common sense, public protection, fairness, and humanity all demanded that such conduct be taken into account. He noted the law should not deter parents or family members from taking similar steps, and that the parents' decision was objectively and subjectively conducive to the purposes of sentencing, including community protection, rehabilitation, and accountability. Price J added that the parental cooperation was properly relevant to assessing the offender's prospects of rehabilitation, since the offender had responded positively to his parents' intervention.

McCallum J observed that the judge had the advantage of seeing the offender in person, gauging the evidence of his progress and the robustness of his family support. Periodic detention was a concededly rare outcome for this type of offence, but the discretion to impose it had not been removed. The sentencing judge's exercise of that discretion was described as thoughtful and sensible.

The appeal was allowed only in part on a conceded structural error in the calculation of the non-parole period (ground 6), which required the sentence to be formally reconstituted.

Orders Made

  • Appeal allowed in part
  • Sentence imposed on 23 April 2010 quashed
  • In lieu, a non-parole period of 13 months and 2 weeks commencing 8 May 2010 and expiring 21 June 2011, with a balance of term of 15 months commencing 22 June 2011 and expiring 21 September 2012, to be served by way of periodic detention

Key Takeaways

  • A parent's decision to report a child's serious criminal conduct to police is a legitimate sentencing consideration, capable of bearing on both rehabilitation prospects and the broader purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • Allsop P went further than the majority in indicating that even where it is unclear whether parental reporting would assist rehabilitation, the act may still be relevant as one objectively conducive to the purposes of sentencing.
  • In a Crown appeal against sentence, it is insufficient to show that the sentence was lenient or one the appellate court would not itself have imposed. The Crown must demonstrate discrete error or manifest inadequacy.
  • Upholding the periodic detention order, the Court of Criminal Appeal affirmed that the discretion to impose periodic detention for commercial drug supply offences had not been removed, even though such an outcome was described as very rare.
  • Price J reaffirmed the longstanding principle that cases involving supply of not less than a commercial quantity of a prohibited drug call for condign sentences reflecting retribution, punishment, and both personal and general deterrence, even where the Crown appeal ultimately failed on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing) and Part 4 Division 1A (standard non-parole periods)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v MacDonnell [2002] NSWCCA 34
- R v Ellis (1986) 6 NSWLR 603
- Ryan v R [2001] HCA 21; (2001) 206 CLR 267
- R v Knight, R v Biuvanua [2007] NSWCCA 283
- R v Cheh [2009] NSWCCA 134
- R v McEvoy [2010] NSWCCA 110
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575