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9
Court of Criminal Appeal 30 November 2010

Smaragdis v R

[2010] NSWCCA 276

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG KNOWINGLY DEAL WITH PROCEEDS OF CRIME POSSESS PROHIBITED WEAPON TIME CUSTODY

Citation: Smaragdis v R [2010] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 30 November 2010
Judge(s): Simpson J, Fullerton J, RA Hulme J

Background

The appellant pleaded guilty in the Local Court to three offences: supplying cocaine (25.6 grams), knowingly dealing with the proceeds of crime ($8,023), and possessing a prohibited weapon (a taser). The offending came to light when police approached the appellant's vehicle in a car park and found the cocaine, cash, drug supply paraphernalia, and the taser during a search.

The appellant's background included the collapse of his hydraulic equipment business, a workplace knee injury, financial stress, and a resulting cocaine addiction. He had begun selling cocaine to fund that addiction for approximately six weeks before his arrest. He was not, however, sentenced for those actual supply transactions; rather, the supply charge was based on the cocaine found in his possession for the purposes of supply.

In the District Court, Sorby DCJ imposed an aggregate sentence of 2 years and 10 months, comprising a non-parole period of 2 years and an additional term of 10 months, with the sentences partially accumulated across the three counts.

  • Whether the sentencing judge failed to properly consider alternatives to full-time custody
  • Whether the sentencing judge failed to properly account for the appellant's remorse
  • Whether exceptional circumstances existed sufficient to enliven a discretion to impose a non-custodial sentence
  • Whether the sentences were manifestly excessive
  • Whether the structure of the sentences was correct, including the imposition of non-parole periods on counts where a fixed term was the only lawful option

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Fullerton J (with Simpson and Hulme JJ agreeing) identified a structural error in the original sentences: the sentencing judge had imposed non-parole periods on the proceeds of crime count and the prohibited weapon count in circumstances where the legislation required that the proceeds of crime count, as a shorter sentence, carry a fixed term only, and the weapon count required separate consideration. This error could only be corrected by re-sentencing on all three counts.

On the question of alternatives to full-time custody, the Court acknowledged the sentencing judge had considered whether exceptional circumstances existed but found no appellable error in the refusal to impose a non-custodial sentence, given the objective seriousness of the supply offence involving five times the indictable quantity of cocaine. The supply count alone warranted imprisonment.

On remorse and rehabilitation, the Court accepted that the appellant had demonstrated genuine remorse and continued commitment to rehabilitation while in custody, including taking responsibility for mechanical maintenance at the prison. These factors, combined with the finding of special circumstances, supported a more pronounced adjustment to the statutory ratio between the non-parole period and the balance of term, as well as some reduction in the degree of accumulation across the three counts.

The re-sentenced aggregate was 2 years and 9 months, comprising a non-parole period of 1 year and 10 months and a balance of term of 11 months. This represented a modest overall reduction, with the primary correction lying in the structural re-configuration of the sentences rather than a significant reduction in total length.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed and the following sentences substituted:
  • Knowingly dealing with proceeds of crime: fixed term of 6 months commencing 25 January 2010, expiring 24 July 2010
  • Possessing a prohibited weapon: non-parole period of 6 months commencing 25 April 2010, expiring 24 October 2010; balance of term of 4 months expiring 24 February 2011
  • Supplying cocaine: non-parole period of 14 months commencing 25 September 2010, expiring 24 November 2011; additional term of 11 months expiring 24 October 2012
  • Aggregate sentence: 2 years and 9 months, with a non-parole period of 1 year and 10 months and a balance of term of 11 months

Key Takeaways

  • A structural error in the imposition of non-parole periods on counts that legally required only a fixed term is a ground of appeal that may result in full re-sentencing across all counts, even where the aggregate length is not dramatically altered.
  • Where a supply offence involves five times the indictable quantity, the Court of Criminal Appeal confirmed this is sufficient to characterise the conduct as trafficking to a substantial degree, which bears on the threshold question of whether exceptional circumstances exist to justify a non-custodial sentence.
  • Evidence of actual drug supply, even if led for other forensic purposes at sentencing, may be relevant to the exceptional circumstances inquiry under the sentencing discretion, notwithstanding that the charge itself is framed as possession for supply.
  • Genuine rehabilitation in custody, including evidence of trusted responsibilities within the prison system, can support an adjustment to the statutory ratio between a non-parole period and the balance of term, particularly where special circumstances have already been found.
  • In re-sentencing, the structure of individual sentences and their accumulation must be considered afresh; a finding of special circumstances, combined with evidence of post-sentence rehabilitation, may justify a more pronounced departure from the standard non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B(2) (knowingly dealing with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(2), 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7

Cases:
- Clarke v R [2009] NSWCCA 49
- Hayek v R [2010] NSWCCA 139
- Kite v R [2009] NSWCCA 12
- Pham v R [2010] NSWCCA 208
- R v Cacciola [1998] NSWSC 531; 104 A Crim R 178
- R v Carrion [2000] NSWCCA 191; 49 NSWLR 149
- R v Clark (CCA, 15 March 1990, unreported)
- R v Curtis (CCA, 22 April 1993, unreported)
- R v Douar [2005] NSWCCA 455; 159 A Crim R 154
- R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357
- R v Hawkins (CCA, 12 September 1991, unreported)
- R v McArthur [2002] NSWCCA 390
- R v Nasr [2004] NSWCCA 441
- R v Saba [2006] NSWCCA 214
- Santos v R [2010] NSWCCA 127
- Vuni v R [2006] NSWCCA 171