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Court of Criminal Appeal 30 September 2011

BASSOS v R

[2011] NSWCCA 218

Drugs
CRIMINAL LAW SENTENCE APPEAL PART PLAYED BY OFFENDER IN SUPPLY CUSTODIAL OPTIONS EFFECT OF STANDARD NON

Citation: BASSOS v R [2011] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 30 September 2011
Judge(s): Bathurst CJ, James J, Hoeben J (judgment of Hoeben J, with whom Bathurst CJ and James J agreed)

Background

The appellant pleaded guilty in the Local Court to supplying a commercial quantity of gamma-butyrolactone (GBL), a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Police executing a search warrant at his Mascot unit found 2,118 grams of GBL (exceeding the commercial quantity threshold), drug paraphernalia, digital scales, and a diary page listing names alongside sums of money. His mobile phone showed 1,840 calls and messages in the week before arrest, though the sentencing judge declined to treat those calls as proven evidence of supply.

Two additional offences were dealt with on a Form 1: possession of methylamphetamine and supply of 1-benzylpiperazine. The appellant had been in custody since February 2010 and had a modest prior record, including dishonesty offences, an assault, and a prior drug possession matter.

Flannery DCJ sentenced the appellant to a total term of 4 years, comprising a non-parole period of 2 years and 3 months followed by a balance of term of 1 year and 9 months. Her Honour found the offence fell "appreciably below the mid-range of objective seriousness" and identified special circumstances given the appellant's rehabilitation prospects and his need for extended supervision on release. His legal representatives had conceded at first instance that a custodial sentence was appropriate.

  • Whether the sentencing judge erred by failing to consider whether the appellant was "substantially involved" in drug supply, as required by the approach in Scott v R
  • Whether the sentencing judge erred by failing to consider non-custodial alternatives pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999, which requires a court to consider whether imprisonment is appropriate before imposing it

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing judge had expressly found that the appellant possessed a large quantity of GBL, that he was a heavy user, and that he had supplied or would supply some to friends. That assessment adequately addressed the extent of the appellant's involvement in supply, consistent with the approach in Scott v R. The Court noted that the facts in that case were distinguishable, as there the sentencing judge had failed to consider the degree of the offender's involvement at all.

On the second ground, the Court accepted that the sentencing judge did not explicitly refer to s 5 of the Crimes (Sentencing Procedure) Act 1999. However, her Honour stated in terms that "it is obvious that a sentence of imprisonment must be imposed," from which the Court inferred she had considered and rejected a non-custodial option. The Court also observed that the standard non-parole period of 10 years and the maximum sentence of 20 years together operated as guideposts making it difficult to see how a lesser sentence could have been appropriate, particularly given the Form 1 matters.

The Court further noted that s 5(4) of the Crimes (Sentencing Procedure) Act 1999 expressly provides that a sentence of imprisonment is not invalidated by a failure to comply with s 5. Even if there had been error, the Court indicated it would not have exercised its discretion to interfere, as no lesser sentence than that imposed would have been appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error arises from a sentencing judge's assessment of an offender's involvement in drug supply where the judge expressly addresses the quantity possessed, the nature of the supply, and the offender's role, even without formal reference to the Scott v R framework by name.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must consider alternatives to imprisonment before imposing a custodial sentence, but s 5(4) provides that a sentence is not invalidated by a failure to comply with that requirement.
  • A sentencing judge's statement that imprisonment is "obvious" can support an inference that non-custodial alternatives were considered and rejected, even where s 5 is not expressly cited.
  • The standard non-parole period and the maximum sentence continue to operate as guideposts even where an offence is found to fall below the midrange of objective seriousness, and they inform whether a lesser sentence could have been appropriate.
  • In dismissing the appeal, the Court confirmed it would not interfere in the exercise of sentencing discretion where the appellant's own legal representatives had conceded at first instance that a custodial sentence was appropriate.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 5(4)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Scott v R [2010] NSWCCA 103
- Zahrooni v R; Director of Public Prosecutions (NSW) v Zahrooni [2010] NSWCCA 252