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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
Date: 6 June 2012
Judges: Hoeben JA, RS Hulme J, Fullerton J

Background

The appellant was convicted of two offences of supplying heroin on three or more separate occasions within a period of 30 consecutive days, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. Each offence related to a separate calendar month (March and April 2010) and each was particularised as involving 80 grams of heroin. A further offence of deemed supply of 22.1 grams, discovered when police executed a search warrant at his home, was taken into account on a Form 1 schedule in connection with the first count.

The appellant operated a retail heroin business from his home, his car, and briefly a hotel. He used multiple phones registered in fictitious names, supplied individual deals of approximately half a gram each, and received between $150 and $180 per transaction. Police intercepted over 2,900 calls over a roughly four-week period, the majority relating to heroin supply. In the two hours after his arrest, police counted more than 60 missed calls to phones found in his car.

Sides DCJ sentenced the appellant to 6 years and 6 months imprisonment (non-parole period of 3 years) for the first offence and 6 years (non-parole period of 4 years) for the second offence, with the sentences partially accumulated to produce an effective sentence of 9 years and 6 months with a non-parole period of 6 years. A 25 per cent discount was applied for the early guilty plea, with a further unspecified reduction for remorse.

Legal Issues

  • Whether the individual sentences for each ongoing supply offence were manifestly excessive (Grounds 1 and 2)
  • Whether the degree of accumulation imposed was excessive, such that the total effective sentence was manifestly excessive (Grounds 3 and 4)
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a justifiable sense of grievance (Ground 5)

Decision

Grounds 1 and 2 (individual sentences manifestly excessive): The majority (RS Hulme J, with Hoeben JA agreeing) dismissed these grounds. RS Hulme J surveyed a range of comparable cases and concluded that the proposition requiring something beyond mere s 25A offending (such as a serious criminal record or a leadership role in a syndicate) to justify a head sentence of 6 years or more was simply wrong. The scale of the appellant's retail operation, the frequency of supply across well over 80 transactions per month, and the significant proceeds received supported the individual sentences. Fullerton J agreed the grounds should be dismissed on the basis that the sentences were not "unreasonable or plainly unjust," but declined to endorse RS Hulme J's criticisms of the manner in which counsel had argued from sentencing statistics and comparable cases.

Grounds 3 and 4 (accumulation and total effective sentence): The bench divided on these grounds. RS Hulme J (with Hoeben JA agreeing) held that the degree of accumulation was not excessive. He reasoned that the appellant had committed two discrete offences, each defined by a separate 30-day period, and that the combined criminality had approximately doubled. The reduction from a theoretical combined term of 12 years and 6 months to an effective 9 years and 6 months demonstrated that totality had been applied. The maximum penalty of 20 years for a single offence placed the total sentence well within range. Fullerton J dissented. She concluded that the same objective features defined the drug business across both counts, and that a more moderated accumulation of two years (rather than the three years and six months that resulted) would have been sufficient to reflect the totality of the offending. She would have allowed the appeal on Grounds 3 and 4 and resentenced.

Ground 5 (co-offender disparity): All judges agreed this ground should be dismissed. The co-offender, Ms Capra, received 30 months imprisonment with a 15-month non-parole period for a single charge covering a shorter period. RS Hulme J acknowledged the disparity was substantial and that he had vacillated, but concluded that the sentencing judge was entitled to treat the difference in roles as justifying it. The appellant was the instigator and organiser: he purchased and cut the drugs, packed them for resale, and acquired the phones. Ms Capra assisted by taking orders and participating in deliveries, but only after joining his pre-existing operation. The principle that organisers bear substantially greater criminal responsibility than those in subsidiary roles supported the differentiation.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, a sentence of 6 years or more for a single ongoing supply offence does not require the offender to have a serious criminal record or occupy a managerial role in a syndicate; the scale, frequency, and proceeds of a retail drug operation can independently justify such a sentence.
  • Sentencing statistics and decisions from comparable cases have recognised limitations as tools for establishing manifest excess; they provide a yardstick against which to examine a proposed sentence, but do not fix the boundaries within which sentencing judges must operate.
  • The Court of Criminal Appeal confirmed that where an offender commits two discrete s 25A offences across consecutive 30-day periods, partial accumulation of sentences is appropriate, though the majority and minority differed on the degree required by the totality principle.
  • Substantial disparity between the sentences of a principal organiser and an assistant who joined an existing drug operation mid-course can be justified where the roles are materially different, particularly where the organiser controlled purchasing, preparation, packaging, and the customer base.
  • Where grounds of manifest excess are argued without persuading a majority of the appellate court, leave to appeal may still be granted even though the appeal is ultimately dismissed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Ali Osman v R [2008] NSWCCA 157
- Chen v R [2009] NSWCCA 157
- Director of Public Prosecutions (Cth) v De
- Fong v R [2011] NSWCCA 283
- Hanza v R [2008] NSWCCA 288
- House v The King (1936) 55 CLR 499
- La Rosa [2010] NSWCCA 194
- Le Huynh v R [2006] NSWCCA 77
- Markarian v The Queen [2005] HCA 25 (2005) 228 CLR 357
- 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 Ek Huoy Eap (unreported Sides DCJ, 4 March 2009
- R v Farah [2005] NSWCCA 67
- R v King (unreported Ellis DCJ, 17 September 2009)
- R v Kairouz [2005] NSWCCA 247
- R v Khaled [2001] NSWCCA 169
- R v Ladocki [2004] NSWCCA 336
- R v Lao [2003] NSWCCA 315 at [32]
- R v Nikolovska [2010] NSWCCA 169 (2010) 209 A Crim R 218
- R v Preston [2005] NSWCCA 177
- R v Radford [2002] NSWCCA 122
- R v Siljanovski & Kostadinovic [2003] NSWCCA 38
- R v Smith (unreported Ellis DCJ, 18 August 2010)
- Pearce v The Queen (1998) 194 CLR 610
- Smith v R [2007] NSWCCA 138
- SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- Windle v R [2011] NSWCCA 277