Citation: Gore v R; Hunter v R [2010] NSWCCA 330
Court: New South Wales Court of Criminal Appeal
Date: 21 December 2010
Judges: Handley AJA, Adams J, Howie AJ
Background
Two co-accused, an adult male (Gore) and his partner (Hunter), were identified by police as suppliers of methylamphetamine from their shared residence. Undercover officers conducted four controlled purchases from the premises between December 2008 and January 2009. The residence had been fortified, the supply operation ran 24 hours a day, and Gore acknowledged the business was lucrative.
Gore pleaded guilty in the District Court to one count of supplying a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985, with 11 allied matters taken into account on a Form 1. He was sentenced to seven years six months imprisonment with a non-parole period of five years seven months. Hunter was also sentenced in the District Court. Both sought leave to appeal to the Court of Criminal Appeal on the ground that their sentences were excessive.
Legal Issues
- Whether the sentencing judge correctly assessed the objective seriousness of the s 25A ongoing supply offence
- Whether the use of fortified premises constituted a significant aggravating factor
- Whether the offences were committed "in company," and what weight that attracted
- Whether the existing sentencing range for s 25A offences accurately reflected the maximum penalty and the seriousness Parliament attached to the offence
- Whether special circumstances existed justifying a variation to the standard non-parole ratio
Decision
The Court of Criminal Appeal allowed both appeals and quashed the District Court sentences, substituting reduced sentences in each case. The majority view on Gore's appeal was delivered by Howie AJ, with Adams J and Handley AJA agreeing in their respective areas.
On objective seriousness, the Court found that Gore's operation, while involving only street-level quantities, was elevated above the lowest rung of criminality by the fortification of the premises and the continuous, around-the-clock nature of the supply business. The fortification represented a significant financial investment and demonstrated a long-term commercial commitment to drug supply. The Court drew a clear distinction between a fixed-premises dealer available 24 hours a day and a street vendor with limited stock and irregular customers.
A notable feature of the judgment was the Court's discomfort with the prevailing sentencing range for s 25A offences. Howie AJ expressed the view, reluctantly, that the range appearing in sentencing statistics did not adequately reflect the seriousness of the offence as measured against the 20-year maximum penalty. The maximum, being a relatively recent legislative enactment, was treated as a reliable indicator of parliamentary intention. The Court found itself obliged to work within the existing range in reducing the sentence, but signalled that the range itself may be unduly lenient.
On special circumstances, Howie AJ declined to make a finding in Gore's favour, noting Gore's criminal history and long-standing drug addiction made confident predictions about rehabilitation difficult. Adams J took a different view on this point, though the orders ultimately reflected Howie AJ's approach.
Orders Made
Gore:
- Leave to appeal granted; appeal allowed
- District Court sentence quashed
- Sentence substituted: non-parole period of 3 years 4 months, balance of term of 14 months, commencing 13 March 2009, with non-parole period expiring 12 July 2012
Hunter:
- Leave to appeal granted; appeal allowed
- District Court sentences quashed
- Fixed terms substituted commencing 13 March 2009 and expiring 23 November 2010, resulting in immediate release
Key Takeaways
- The Court of Criminal Appeal confirmed that operating a drug supply business from fortified premises is a matter of significant aggravation, reflecting the degree of investment, commitment, and notoriety associated with such an operation.
- A street-level dealer supplying from a fixed address 24 hours a day occupies a higher position on the scale of criminality than a street vendor, even where the individual quantities supplied are small.
- Under s 25A of the Drug Misuse and Trafficking Act 1985, the 20-year maximum penalty carries real weight in sentencing, particularly given the offence's relatively recent enactment, and courts should not allow a prevailing sentencing range to render that maximum irrelevant.
- Howie AJ signalled, albeit reluctantly, that the existing sentencing range for s 25A offences may not adequately reflect Parliament's view of the offence's seriousness, even while applying that range to the present case.
- Where an applicant bears the onus of establishing special circumstances for a variation to the standard non-parole ratio, a history of prior imprisonment and entrenched drug addiction may weigh against a finding in their favour.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A, 25, 25A, 36Z
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 44
- Criminal Procedure Act 1986 (NSW), s 166
- Poisons and Therapeutic Goods Act 1966 (NSW), ss 10, 16
Cases:
- Markarian v The Queen [2005] HCA 25
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Smith v R [2007] NSWCCA 138
- Chen v R [2009] NSWCCA 157
- McCullough v R [2009] NSWCCA 94
- Fitzpatrick v R [2010] NSWCCA 26
- R v Barlow [2010] NSWCCA 215
- Hanza v R [2008] NSWCCA 288
- Singh [2009] NSWCCA 129
- Sivell v R [2009] NSWCCA 286
- R v Kairouz [2005] NSWCCA 247
- R v Morgan (1993) 70 A Crim R 368
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47
- Khaled [2001] NSWCCA 169
- Tran v R [2007] NSWCCA 140