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Court of Criminal Appeal 9 April 2010

Knight v R

[2010] NSWCCA 51

Drugs

Citation: Knight v R [2010] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 9 April 2010
Judge(s): McClellan CJ at CL; James J; Rothman J

Background

The appellant was a 47-year-old woman who pleaded guilty in the District Court to two counts of supplying a prohibited drug (methylamphetamine and lysergide), both committed on 3 January 2008. Police executing a search warrant at her home found the drugs, a small quantity of MDMA, $650 in cash, scales, and a large number of resealable plastic bags. The sentencing judge treated her as a street-level dealer who likely supplied drugs to fund her own addiction.

The appellant had a substantial criminal history including 33 prior convictions, nine of which related directly to drugs. She committed the supply offences while on bail for an unrelated break-and-enter matter. The District Court sentenced her to a total head sentence of three years and four months, with a combined fixed term and non-parole period of two years.

The sole ground of appeal was that the sentencing judge erred by finding the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act applied, namely that the offences were "part of a planned or organised criminal activity."

  • Whether the sentencing judge erred in finding that the offences were aggravated under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act as being part of a "planned or organised criminal activity"
  • If error was established, whether that error materially affected the sentences imposed, such that the sentences should be set aside

Decision

The Court of Criminal Appeal accepted that the sentencing judge erred in formally identifying s 21A(2)(n) as an aggravating factor. Consistent with its prior decisions in Yildiz, Fahs, and Hewitt, the Court confirmed that this aggravating factor is only available where the degree of planning exceeds what would ordinarily be expected for an offence of that type. Routine street-level drug dealing, even when carried on as a business, does not of itself satisfy that higher threshold.

Despite finding the error, the Court concluded that the mistake had no material effect on the sentences imposed. The sentencing judge's own remarks made clear that he viewed the planning as no more than the basic organisation inherent in ordinary street-level dealing, and there was no indication he treated the s 21A(2)(n) finding as genuinely aggravating the offender's culpability beyond its baseline level.

James J, with the agreement of McClellan CJ at CL, observed that the sentences were readily explicable by other significant factors: the appellant was conducting an ongoing drug supply business, had nine prior drug convictions, and was on bail at the time of the offences. Rothman J went further, expressing the view that the error had no effect at all, given the sentencing judge's express treatment of the planning as falling within the ordinary scope of street-level dealing.

The Court granted leave to appeal but dismissed the appeal against sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, a sentencing court cannot treat an offence as aggravated by planning or organisation unless the evidence supports a finding beyond reasonable doubt that the degree of planning exceeded what would ordinarily be expected for that type of offence.
  • Street-level drug dealing, even when conducted in a businesslike manner with scales and packaging materials, does not automatically meet the threshold for the s 21A(2)(n) aggravating factor.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle from Yildiz that an error in identifying an aggravating factor will not necessarily result in a sentence being set aside if the error had no more than a marginal (or, on Rothman J's view, no) effect on the ultimate sentence.
  • Where a sentence can be fully explained by other legitimate factors, such as criminal history, bail status at the time of offending, and the commercial nature of the conduct, an isolated error in identifying an aggravating factor may not warrant intervention on appeal.
  • All three judges agreed on the outcome, though Rothman J expressed a slightly stronger view than James J on the degree to which the error was inconsequential in this case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), ss 3A, 21A(2)(n), 21A(3)
- Criminal Appeal Act (NSW)
- Drug Misuse and Trafficking Act (NSW), s 25(1)

Cases
- R v Yildiz (2006) 160 A Crim R 218 (NSWCCA)
- Fahs v R [2007] NSWCCA 26
- Hewitt v R (2007) 180 A Crim R 306 (NSWCCA)