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Court of Criminal Appeal 7 December 2010

WU v R

[2010] NSWCCA 286

Drugs

Citation: WU v R [2010] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 7 December 2010
Judge(s): McClellan CJ at CL; Hulme J; Davies J

Background

The applicant, a young man born in January 1989, was sentenced in the District Court on 3 July 2009 for three drug supply offences involving Nexus (4-bromo-2,5-dimethoxyphenethylamine), a drug with effects described as similar to, but less potent than, LSD. The offences arose from police surveillance and searches conducted in November and December 2007, when the applicant was approximately 18 years old.

The offences included supplying a commercial quantity (32.4 grams) and a large commercial quantity (137.4 grams) of Nexus on 21 December 2007, as well as supplying a large commercial quantity through numerous telephone-arranged transactions over the period 13 November to 21 December 2007. Police intercepted 23 telephone calls during surveillance, revealing arrangements to supply more than 3,000 tablets, some in wholesale quantities.

Williams DCJ imposed an effective sentence of 10 years, with a non-parole period of 7 years. The applicant sought leave to appeal, arguing the sentencing judge had erred in failing to find special circumstances under the relevant sentencing provisions, which would have justified a longer parole period relative to the non-parole period.

  • Whether the sentencing judge erred by failing to make a finding of special circumstances under s 44(2) of the applicable sentencing legislation, which prescribes the standard ratio between the non-parole period and the balance of the sentence.
  • Whether the applicant's youth and the fact that this was his first time in custody warranted a finding of special circumstances and a reduction in the non-parole periods imposed for the two large commercial quantity offences.
  • Whether any lesser sentence was warranted in law, applying s 6(3) of the Criminal Appeal Act 1912.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by failing to address the question of special circumstances in his remarks on sentence. The transcript of the sentencing proceedings showed the issue was not raised by either party, though counsel for the applicant had noted it would be the applicant's first time in custody, which is commonly treated as a basis for finding special circumstances.

Hulme J, with whom McClellan CJ at CL and Davies J agreed, observed that the effective sentence imposed was consistent with the judge having implicitly departed from the standard ratio under s 44(2), but that any such departure was minimal and undisclosed. The sentencing judge's failure to address the matter in his remarks constituted legal error.

The Court accepted that the applicant's youth and the fact that this was his first period of custody together warranted a formal finding of special circumstances. On that basis, the non-parole periods for the two large commercial quantity offences were reduced from 6 years to 5 years each, while the balance of those sentences was extended to 4 years, preserving the total head sentences. The sentence on the commercial quantity offence was confirmed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence on count (i) (supplying a commercial quantity of Nexus on 21 December 2007) confirmed.
  • Sentences on counts (ii) and (iii) quashed.
  • Count (ii): imprisonment with a non-parole period of 5 years commencing 21 December 2008 and a further term of 4 years commencing 21 December 2013.
  • Count (iii): imprisonment with a non-parole period of 5 years commencing 21 December 2008 and a further term of 4 years commencing 21 December 2013.
  • Parole eligibility date recorded as 21 December 2013.

Key Takeaways

  • A sentencing judge who departs from the standard non-parole period ratio under s 44(2) must make a finding of special circumstances and record reasons; failure to do so constitutes error on the face of the sentencing exercise.
  • Youth and a first period of imprisonment are factors commonly recognised as capable of justifying a finding of special circumstances, and the Court of Criminal Appeal confirmed their relevance in this case.
  • The Crown accepted that grounds for a special circumstances finding existed, but argued no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912; the Court of Criminal Appeal rejected that submission.
  • Under the Drug Misuse and Trafficking Act 1985, the large commercial quantity threshold for Nexus is 100 grams, compared with 500 grams for MDMA and just 2 grams for LSD, placing Nexus in an intermediate position among scheduled substances.
  • Reducing the non-parole period while maintaining the overall head sentence preserves the supervisory purpose of parole, allowing a longer period of structured transition for a young, first-time custodial offender.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33, Schedule 1
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Sentencing legislation governing non-parole periods and special circumstances (s 44(2), as referenced in the judgment)

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