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Court of Criminal Appeal 25 November 2010

R v Pickett

[2010] NSWCCA 273

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES SUPPLY PROHIBITED DRUG (COCAINE) OTHER OFFENCES CRIMINAL LAW

Citation: R v Pickett [2010] NSWCCA 273
Court: New South Wales Court of Criminal Appeal
Date: 25 November 2010
Judge(s): Simpson J, Fullerton J, RA Hulme J

Background

The respondent, a man in his late forties, pleaded guilty in the District Court to ongoing supply of a prohibited drug (cocaine) under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The charge arose from three cocaine supplies to an undercover police operative between November and December 2008, with two further supply offences taken into account on a Form 1. In total, the respondent supplied approximately 26.92 grams of cocaine for $8,250.

The respondent had become involved in drug supply through his longstanding connection with Richard Buttrose, to whom he owed a personal debt of $100,000 from a failed motor racing venture. Buttrose, who was later found with $1.3 million in cash and charged with supplying a large commercial quantity of cocaine, had pressured the respondent into acting as a courier. Critically, the respondent voluntarily ceased his involvement in the drug supply operation before he was arrested.

In the District Court, Phegan ADCJ sentenced the respondent to 20 months' imprisonment but suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999, releasing him on conditions. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the suspended sentence was manifestly inadequate for an offence of ongoing cocaine supply carrying a maximum of 20 years' imprisonment
  • Whether the sentencing judge failed to properly assess the objective seriousness of the offending
  • Whether the sentencing judge gave excessive weight to the respondent's subjective circumstances
  • Whether the sentencing judge correctly identified "exceptional circumstances" sufficient to justify a suspended sentence rather than full-time custody

Decision

The Court of Criminal Appeal dismissed the Crown appeal, though not without some reservations about aspects of the sentencing judge's reasoning. Simpson J, with whom RA Hulme J agreed, and Fullerton J in separate reasons, each concluded that no error warranting intervention had been established once the full picture of the respondent's circumstances was properly considered.

The primary controversy centred on whether "exceptional circumstances" existed to justify a suspended sentence. The sentencing judge had pointed to the respondent's age, work history, rehabilitation, and his potential involvement in a community youth road safety program as the basis for that finding. The Court of Criminal Appeal noted some difficulty with relying on mere potential for future contribution as sufficient to reach the exceptional threshold on its own.

However, the Court found that the respondent's voluntary withdrawal from Buttrose's drug operation before his arrest was a matter of significant weight. Taken together with his age, genuine rehabilitation, status as a one-off participant in the drug trade, and his demonstrated willingness to contribute to a charitable program, the combination of circumstances was sufficient to place the case in the exceptional category.

Fullerton J observed that, while the facts relevant to sentencing are quintessentially a matter for the sentencing judge, the voluntary cessation of criminal activity prior to arrest was a particularly important feature that, when combined with the other subjective matters, grounded a proper finding of exceptional circumstances. The Court's conclusion was not that the sentence was optimal, but that no error was established that required the appeal to succeed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's decision to impose a suspended sentence, even for a serious drug supply offence, where the combination of subjective circumstances met the exceptional circumstances threshold.
  • A respondent's voluntary cessation of criminal activity before arrest can carry significant weight in sentencing, particularly when combined with genuine rehabilitation, age, and limited involvement in the broader criminal enterprise.
  • Mere potential for future community contribution, taken alone, may be insufficient to constitute exceptional circumstances justifying suspension of a sentence; the Court flagged difficulty with that aspect of the sentencing judge's stated reasoning.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that an appellate court will not intervene simply because a different sentence might have been imposed, but only where error is established.
  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, ongoing supply of a prohibited drug carries a maximum of 20 years' imprisonment; the absence of full-time custody in a given case turns heavily on whether exceptional circumstances are properly made out on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, Part 3 Division 3
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17(1)

Cases:
- Brown v R; Reid v R [2006] NSWCCA 144
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Bardo (NSWCCA, 14 July 1992, unreported)
- R v Burns [2007] NSWCCA 228
- R v Clark (NSWCCA, 15 March 1990, unreported)
- R v Gipp [2006] NSWCCA 115; 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Santos [2010] NSWCCA 127
- R v Thompson (NSWCCA, 4 April 1991, unreported)
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Scott v R [2010] NSWCCA 103