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Court of Criminal Appeal 6 June 2011

Michael v Regina

[2011] NSWCCA 122

Drugs
CRIMINAL LAW SUPPLY OF PROHIBITED DRUG SENTENCING APPEAL SENTENCE QUASHED AND RESENTENCED

Citation: Michael v Regina [2011] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 6 June 2011
Judge(s): Macfarlan JA, Johnson J, Garling J (Garling J delivered the leading judgment)

Background

The applicant, a 43-year-old man, was found guilty by a jury of supplying 5.87 grams of MDMA (ecstasy) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Police had arrested him at a hotel in Coffs Harbour in the early hours of 20 December 2008, after finding him in possession of 20 ecstasy tablets and $597 in cash. The conviction arose through the deemed supply provision in s 29 of that Act: because the quantity exceeded the traffickable threshold and the jury was not persuaded the tablets were for personal use, supply was presumed.

At trial, the applicant had argued the tablets were solely for his own use, relying on evidence of financial hardship, personal misfortune, and a claimed pattern of recreational drug use. The jury acquitted him of a separate charge of actually supplying tablets to another person that same evening, but convicted him on the deemed supply count.

The District Court sentenced the applicant to four years imprisonment with a non-parole period of two years. He sought leave to appeal against that sentence on several grounds.

  • Whether the sentencing judge fettered his discretion by failing to treat the offence as an isolated act of supply, given the jury's partial acquittal and the circumstances of the offending
  • Whether the sentencing judge erred in rejecting the applicant's claim to have been a drug user prior to his arrest
  • Whether the sentencing judge erred by giving no weight to the conclusions of two expert reports (a clinical psychologist's report and a Probation and Parole report) that recommended ongoing psychological management

Decision

On the first ground, the Court of Criminal Appeal found no appellable error in the sentencing judge's approach to the nature of the offending. Although the judge made a comment before the sentencing hearing that appeared to assume the applicant had been actively distributing drugs to patrons at a dance, the Court accepted that the judge, when properly addressed by counsel, proceeded to sentence on the correct factual basis. The offence remained a serious one requiring general deterrence.

On the second ground, the Court found the sentencing judge's rejection of the applicant's claimed history of drug use before arrest was a finding of fact within the judge's discretion. No appellable error arose from that finding. The judge was entitled to weigh the evidence, including the implausibility of certain aspects of the applicant's account, and reach the conclusion he did.

The third ground succeeded. The Court found that the sentencing judge had effectively given no weight to the agreed conclusions of two expert reports, both of which identified the applicant's need for ongoing psychological management. The reports from the clinical psychologist and the Probation and Parole Service were substantially consistent on this point. Disregarding those conclusions without adequate reason constituted error in the exercise of the sentencing discretion.

Having identified that error, the Court of Criminal Appeal re-exercised the sentencing discretion. It acknowledged the offence was serious and that general deterrence carried significant weight. Against that, the Court noted the offending involved a single event, a relatively low quantity of drug, no established history of supply, and a strong subjective case supported by the expert evidence. The Court treated the criminality as sitting at the lower end of the scale and imposed a substantially reduced sentence.

Orders Made

  • Appeal allowed
  • Sentence of Finnane DCJ imposed on 11 June 2010 quashed
  • In lieu of the original sentence, the applicant was resentenced to:
  • A non-parole period of 15 months commencing 10 March 2010, expiring 9 June 2011
  • A balance of term of 15 months commencing 10 June 2011, expiring 9 September 2012
  • Release on parole on 9 June 2011

Key Takeaways

  • A sentencing judge's rejection of a factual claim made by the offender (here, that the offender was a drug user prior to arrest) is a finding of fact that will not be disturbed on appeal unless appellable error is shown, even where the finding affects the assessment of the subjective case.
  • Where two expert reports are before a sentencing court and reach consistent conclusions about an offender's need for ongoing psychological management, giving those conclusions no weight constitutes an error in the exercise of the sentencing discretion.
  • Under the deemed supply provisions of the Drug Misuse and Trafficking Act 1985, a jury's acquittal on an actual supply charge does not prevent conviction on a deemed supply count arising from possession of a traffickable quantity, and the sentencing court must proceed on that basis.
  • In resentencing, the Court of Criminal Appeal identified factors that placed the criminality at the lower end of the scale: a single supply event, a quantity well below the commercial threshold, and no established pattern of supply activity.
  • Offhand remarks by a sentencing judge before formal proceedings commence, suggesting an assumed factual basis inconsistent with the jury's verdict, can raise concerns about the proper exercise of the sentencing discretion, even if no appellable error ultimately arises from those remarks alone.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29, Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Baxter v Regina [2007] NSWCCA 237
- Dinsdale v The Queen (2000) 202 CLR 321
- Furia v Regina [2010] NSWCCA 326
- R v Bardo, unreported, NSWCCA (14 July 1992)
- R v Clark, unreported, NSWCCA (15 March 1990)
- R v Gip (2006) 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- R v Ozer, unreported, NSWCCA (9 November 1993)
- Scott v R [2010] NSWCCA 103