Citation: R v Campbell [2010] NSWDC 249
Court: NSW District Court
Date: 3 September 2010
Judge(s): Berman SC DCJ
Background
The offender, a 30-year-old woman, appeared for sentencing on three offences arising from her involvement in drug supply activities alongside her de facto partner. She had pleaded guilty to each offence, entitling her to a 25 per cent discount on the sentences that would otherwise have been imposed.
The first two offences arose from a police search of the shared premises on 3 June 2009, which uncovered extensive evidence of drug packaging and supply. The offender was found to be carrying $1,200 in cash suspected to be proceeds of crime. Despite being granted bail on those matters, she went on to participate in a further series of drug transactions between October and November 2009, acting as the delivery person in three controlled purchases of methylamphetamine arranged between her partner and an undercover police officer.
When arrested in November 2009, the offender was found in possession of a stolen mobile phone and cannabis. A subsequent search of her home uncovered a loaded sawn-off shotgun. She had a prior criminal history for drug possession but not drug supply, and was assessed as having a significant cannabis addiction at the time of offending.
Legal Issues
- What sentences were appropriate for each of the three offences, having regard to the mitigating and aggravating features?
- Whether the continued commission of offences while on bail constituted a significant aggravating factor
- Whether methylamphetamine should be treated as a mid-range drug (below heroin) for sentencing purposes, or on par with heroin
- Whether the offender demonstrated genuine remorse and had good prospects of rehabilitation
- Whether the grandmother's post-surgical care needs constituted an exceptional circumstance warranting a reduction in the custodial term
Decision
The court identified the ongoing supply offence as the most serious of the three, carrying a maximum penalty of 20 years imprisonment. The fact that the offender continued to offend after being granted bail was treated as a significant aggravating factor. Although the individual quantities were small and were never disseminated to the community (being seized during a controlled operation), the conduct represented an ongoing business of drug supply rather than an isolated incident.
On the drug classification question, the court rejected the submission that methylamphetamine should be treated as a mid-range drug below heroin. Following the High Court's decision in Adams v The Queen and the NSW Court of Criminal Appeal's decision in Pham v The Queen, the court held that the legislature's choice to set identical commercial quantity thresholds for methylamphetamine and heroin signals that the two drugs should be treated with equal seriousness at sentencing. The court noted that the Judicial Commission Sentencing Bench Book had continued to reference the earlier conflicting decision of R v Cheikh despite those later authorities, and signalled that the Bench Book required updating on this point. (A postscript to the judgment confirms the relevant passage was amended shortly after.)
The court declined to find that the offender had good prospects of rehabilitation, citing her prior drug use convictions, her serious addiction at the time of offending, and her decision to reoffend while on bail. The claim of remorse was not accepted on the evidence available. Equally, the grandmother's convalescence needs were not found to be exceptional circumstances, and in any event the required custodial period would well exceed the one month of post-operative care identified by the treating doctor.
The court acknowledged the genuine mitigating features: the small quantities involved, the offender's own drug addiction, her role as a deliverer rather than organiser, and the fact that no drugs reached the broader community. Without those factors, the court indicated the sentence would have been considerably heavier.
Orders Made
- Dealing with proceeds of crime: fixed term of 3 months imprisonment, commencing 12 November 2009
- Allowing premises to be used as drug premises: fixed term of 6 months imprisonment, commencing 12 December 2009
- Ongoing supply of prohibited drugs: head sentence of 3 years and 6 months imprisonment, with a non-parole period of 18 months commencing 12 March 2010 (earliest release date: 11 September 2011)
Key Takeaways
- The District Court confirmed, following Adams v The Queen and Pham v The Queen, that methylamphetamine must be treated as equally serious as heroin for sentencing purposes, given identical legislative quantity thresholds. The earlier Court of Criminal Appeal decision in R v Cheikh, which had suggested a lower classification, no longer represents the correct position.
- Reoffending while on bail is a significant aggravating factor in sentencing, reflecting an abuse of the court's decision to grant liberty.
- Under the ongoing supply provision (s 25A), the offence targets a pattern of repeated supply rather than isolated transactions, and this ongoing character is itself central to the gravity of the conduct.
- A claim of remorse based solely on a statement in a pre-sentence report that the offender "agreed with the police facts" carries limited weight, particularly where the offender has not given evidence in the sentencing proceedings.
- Personal hardship affecting a family member does not automatically reduce a custodial sentence unless the circumstances are genuinely exceptional, and even then the duration of the required custodial term may render the hardship argument moot.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 25A (ongoing supply of prohibited drugs)
- Crimes Act 1900 (NSW), s 166 (certificates for related offences dealt with on sentence)
Cases:
- Adams v The Queen [2008] 8 CA 15
- Pham v The Queen [2009] NSWCCA 25
- R v Cheikh [2004] NSWCCA 448
- R v Poon (2003) 56 NSWLR 284