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Court of Criminal Appeal 6 June 2012

RITTER v REGINA

[2012] NSWCCA 121

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF HEROIN

Citation: Ritter v Regina [2012] NSWCCA 121
Court: Court of Criminal Appeal, New South Wales
Date: 6 June 2012
Judge(s): Hoeben JA; RS Hulme J; Fullerton J

Background

The applicant, a 39-year-old man of Romanian origin, ran what the sentencing judge described as a "thriving drug trafficking business" selling heroin to users from his home, car, and briefly a hotel. He operated at the lower end of the drug trafficking hierarchy, conducting frequent small transactions of approximately 0.5 grams each for around $150 to $180 per deal. During a single two-hour window after his arrest, police counted more than 60 missed calls to two phones found in his car, and over 2,900 intercepted calls were recorded across a four-week period.

He was convicted of two offences of ongoing supply of heroin under s 25A(1) of the Drug Misuse and Trafficking Act 1985, each covering a separate 30-day period (March and April 2010) and each particularised at 80 grams supplied. A further deemed-supply charge for 22.1 grams found at his home on arrest was taken into account on a Form 1 schedule in connection with the first offence.

At first instance, Sides DCJ sentenced the applicant to an effective total of 9.5 years imprisonment with a non-parole period of 6 years. The applicant sought leave to appeal, contending the sentences were manifestly excessive.

  • Whether the effective sentence of 9.5 years (non-parole period of 6 years) was manifestly excessive for two offences of ongoing heroin supply under s 25A(1) of the Drug Misuse and Trafficking Act 1985.
  • Whether the sentencing judge correctly applied the totality principle when accumulating the two sentences.
  • Whether the sentence was disproportionate relative to the sentence imposed on the applicant's co-offender, Jorgelina Capra.
  • Whether the sentencing judge erred in any other identifiable respect that would warrant appellate intervention under the House v The King standard.

Decision

The Court of Criminal Appeal, with RS Hulme J delivering the principal judgment and Hoeben JA agreeing, undertook a detailed review of the sentencing judge's reasoning and a survey of comparable sentences for s 25A offences. The Court examined the personal circumstances of the applicant, including his dysfunctional upbringing, his own heroin addiction, an adjustment disorder and symptoms of depression and anxiety, his early guilty plea (attracting a discount of approximately 25%), genuine remorse, and good prospects of rehabilitation.

On the question of the co-offender's sentence, the Court acknowledged the significant disparity: Ms Capra received 30 months with a 15-month non-parole period, against the applicant's effective 9.5 years. The Court accepted that there were legitimate reasons for the difference. The applicant was the organiser of the enterprise; he sourced, cut, packaged, and distributed the drugs, registered phones in fictitious names, and had operated the business before Ms Capra became involved. Ms Capra played an ancillary role and also received a larger discount for her plea and willingness to assist police.

The Court canvassed a range of comparable sentencing decisions for ongoing supply of various prohibited drugs, including heroin, methylamphetamine, and ecstasy, to assess whether the sentences fell within the appropriate range. After that review, the Court found error in the sentences as imposed and concluded that some reduction was warranted, though the overall criminality remained serious.

The Court also considered the structure of the non-parole periods as between the two charges, noting that the lower non-parole period on the first (and longer head sentence) charge appeared designed to avoid double-counting the applicant's overall criminality. The Court treated this approach as proper in principle, though the expression of the reasoning could have been clearer.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, ongoing supply offences carry a maximum of 20 years imprisonment; the provision is specifically aimed at those who regularly supply small quantities, and sentences must reflect the sustained and commercial nature of that conduct.
  • A significant sentencing disparity between co-offenders does not automatically constitute error where differences in role, culpability, and applicable discounts provide a rational basis for the distinction.
  • The totality principle requires that accumulated sentences for multiple ongoing supply offences reflect the overall criminality without counting the same conduct twice; the Court of Criminal Appeal confirmed that structuring non-parole periods to avoid that double-counting is a proper sentencing technique.
  • Appellate intervention in sentencing remains governed by the House v The King standard: the Court of Criminal Appeal will not interfere unless identifiable error is established, including manifest excess assessed by reference to comparable cases.
  • Personal mitigating factors, including addiction as a driver of offending, genuine remorse, an early guilty plea, and good rehabilitation prospects, are relevant to the quantum of any discount, but do not displace the need for sentences that reflect the gravity and duration of a commercial heroin supply operation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Ali Osman v R [2008] NSWCCA 157
- Chen v R [2009] NSWCCA 157
- Fong v R [2011] NSWCCA 283
- Hanza v R [2008] NSWCCA 288
- La Rosa [2010] NSWCCA 194
- Le Huynh v R [2006] NSWCCA 77
- Mirza v R [2007] NSWCCA 248
- R v CBK [2002] NSWCCA 457; (2002) 128 A Crim R 29
- R v Cheikh & Hoete [2004] NSWCCA 448
- R v Farah [2005] NSWCCA 67
- R v Kairouz [2005] NSWCCA 247
- R v Khaled [2001] NSWCCA 169
- R v Ladocki [2004] NSWCCA 336
- R v Lao [2003] NSWCCA 315
- R v Nikolovska [2010] NSWCCA 169; (2010) 209 A Crim R 218
- Director of Public Prosecutions (Cth) v De La Rosa (cited in proceedings)
- R v Ek Huoy Eap (unreported, Sides DCJ, 4 March 2009)
- R v King (unreported, Ellis DCJ, 17 September 2009)