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Court of Criminal Appeal 2 September 2011

Ismael Amado v R

[2011] NSWCCA 197

Drugs
CRIMINAL LAW POSSESSION OF PROHIBITED DRUG SUSPENDED SENTENCE QUASHED

Citation: Ismael Amado v R [2011] NSWCCA 197
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2011
Judge(s): Basten JA, Simpson J, Garling J

Background

The appellant was convicted after a jury trial of possessing a prohibited drug, specifically 14.95 grams of MDMA. Although the jury accepted the drug was for personal use, the quantity fell within the range ordinarily associated with supply offences, which made the sentencing exercise particularly delicate.

In October 2009, the District Court sentenced the appellant to imprisonment, then immediately suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), directing a nine-month good behaviour bond. The remarks on sentence were brief and did not clearly demonstrate that the sentencing judge had separately considered whether imprisonment was the only appropriate option before moving to suspension.

The appellant sought leave to appeal out of time. Although the suspended sentence had already expired by the time the matter came before the Court of Criminal Appeal, the appellant pressed the appeal on the basis that the sentence should be quashed and replaced with a s 9 good behaviour bond, which carries different consequences on the offender's record and for any future proceedings.

  • Whether the sentencing judge erred by failing to separately and distinctly consider whether imprisonment was the only appropriate penalty before imposing and then suspending the sentence
  • Whether the two-step process required by ss 5 and 12 of the Crimes (Sentencing Procedure) Act 1999 was impermissibly "elided"
  • Whether the quantity of the drug, falling within the supply range, made a term of imprisonment the only appropriate penalty in the circumstances
  • Whether it remained appropriate to re-sentence the appellant after the original suspended sentence had already expired

Decision

Garling J (with whom the Court agreed) found that the sentencing judge's brief remarks failed to demonstrate the careful, distinct reasoning required when imposing a suspended sentence. Section 5 of the Crimes (Sentencing Procedure) Act requires a court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. That determination must be made separately from, and prior to, the decision to suspend under s 12.

On the facts, it was not obvious that imprisonment was the only appropriate option. The appellant had been found by the jury to have possessed the drugs for personal use, he had demonstrated rehabilitation, was abstinent from illicit drugs, and had a positive prognosis from his treating clinician. The combination of the nature of the offence and the appellant's subjective circumstances called for genuine engagement with non-custodial alternatives, which the sentencing judge's reasons did not reflect.

Basten JA, in a separate judgment, examined the structural tension in the legislation: a suspended sentence sits under "Non-custodial alternatives" in the Act's structure, yet s 12 formally requires a sentence of imprisonment as its precondition. His Honour confirmed that while the steps in the sentencing process should not be elided, a mechanically rigid approach is also misguided. The key requirement is that the court genuinely, and not merely formally, considers whether imprisonment is necessary before moving to suspension.

The Court also rejected the submission that re-sentencing would be futile simply because the original term had expired. Section 6(3) of the Criminal Appeal Act 1912 obliges the Court to pass the sentence that ought to have been imposed. Garling J concluded that the appropriate sentence from the outset should have been a s 9 good behaviour bond for nine months, commencing from the original sentencing date.

Orders Made

  • Extension of time granted to 19 May 2011 to file the notice of application for leave to appeal
  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by Lakatos DCJ on 23 October 2009 quashed
  • In substitution, the appellant directed to enter a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for nine months commencing 23 October 2009

Key Takeaways

  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must genuinely and separately consider whether all alternatives to imprisonment are inadequate before imposing a sentence of imprisonment, even where suspension is already contemplated.
  • The two distinct steps identified in Dinsdale v The Queen (2000) 202 CLR 321, first determining that imprisonment is required, and second determining whether to suspend it, must not be elided; a suspended sentence should not be used as a "soft option" when the court is uncertain what to do.
  • A suspended sentence is not treated as equivalent to a non-custodial order: it carries the full consequences of an imprisonment conviction on the offender's record and creates a contingent liability to serve the term if the bond is breached.
  • Re-sentencing after a suspended sentence has already expired is not necessarily futile; s 6(3) of the Criminal Appeal Act 1912 requires the Court to impose the sentence that should have been passed in the first place.
  • Where the quantity of a drug falls within the supply range but the offender is convicted only of possession for personal use, the sentencing court must carefully address whether the supply-range quantity, combined with the offender's subjective circumstances, truly makes imprisonment the only appropriate option.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 44, 45, 46, 98(3), 99(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Interpretation Act 1987 (NSW), s 35(1)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Zamagias [2002] NSWCCA 17
- R v Foster [2001] NSWCCA 215
- R v Blackman and Walters [2001] NSWCCA 121
- Elliot v Harris (No 2) (1976) 13 SASR 516
- Stevens v Giersh (1976) 14 SASR 81
- Regina v Percy [1975] Tas SR 62
- O'Keefe v The Queen [1969] 2 QB 29
- Regina v Gillan (1991) 54 A Crim R 475
- Regina v P (1992) 39 FCR 276