AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 21 February 2012

RESTUCCIA v REGINA

[2012] NSWCCA 15

Drugs
CRIMINAL LAW SENTENCING DRUG SUPPLY ECSTASY INDICTABLE QUANTITY

Citation: Restuccia v Regina [2012] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 21 February 2012
Judge(s): RS Hulme J (with Macfarlan JA and Garling J agreeing)

Background

The applicant was sentenced in the District Court on three offences of deemed supply of an indictable quantity of MDMA (ecstasy). The offences arose from two separate incidents in March 2010: police found him near the Sydney Gay and Lesbian Mardi Gras after-party in possession of 61 tablets (17.83 grams), and he later sold 10 tablets to an undercover officer. A search of his bedroom then uncovered a further 30 tablets along with scales, a drug testing kit, and other indicators of dealing.

King SC DCJ imposed an effective sentence of three years and six months, including a non-parole period of two years, with a 25% discount applied for the applicant's guilty plea. The sentencing judge found the applicant was substantially involved in drug dealing and treated his commission of the second and third offences while on bail as a significant aggravating factor.

The applicant sought leave to appeal, contending the sentences on the second and third counts were manifestly excessive.

  • Whether the sentences imposed for the second and third offences (supply of 2.86 grams and 8.93 grams of MDMA respectively) were manifestly excessive given the relatively small quantities involved.
  • Whether there is a principle of parity applicable to sentences imposed on a single offender at the one time, such that the later sentences were disproportionate compared with the first sentence.

Decision

The Court of Criminal Appeal rejected both arguments and dismissed the appeal. RS Hulme J, with whom Macfarlan JA and Garling J agreed, held that the sentences were well within the sentencing discretion of King DCJ.

On the question of manifest excess, the Court noted that deterrence carries significant weight in drug supply sentencing. The applicant had prior drug possession charges and was on a good behaviour bond at the time of the offences, meaning the illegality of his conduct had been repeatedly brought home to him. The fact that the second and third offences were committed while on bail after arrest for the first offence was described as a "contumelious breach of the law." The Crown's comparative cases, R v Tirtabudi and Howarth v R, confirmed the sentences fell within an acceptable range.

On the parity argument, the Court rejected the submission that a principle of parity applies as between multiple sentences imposed on the same offender at the same time. RS Hulme J noted that counsel was unable to point to any authority supporting such a proposition. The Court added that, had there been any basis to interfere with the second sentence, it would have considered partial accumulation of the third sentence rather than reduction, given the third offence was committed concurrently in time but was legally distinct.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No principle of parity applies between separate sentences imposed simultaneously on the one offender: a disparity between counts does not itself constitute a sentencing error.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that deterrence is a substantial sentencing consideration for drug supply offences, regardless of the relatively small quantities involved in individual transactions.
  • Committing further supply offences while on bail, after arrest for an earlier supply offence, is a serious aggravating factor that can justify sentences that might otherwise appear disproportionate to the quantity of drugs involved.
  • Comparative cases (R v Tirtabudi and Howarth v R) were used to confirm the sentences sat within an acceptable sentencing range, illustrating how the Court of Criminal Appeal uses comparators to assess manifest excess claims.
  • Where concurrent sentences were imposed on separate offences without apparent justification, the Court signalled it would, if intervening, have imposed partial accumulation rather than reduction.

Legislation and Cases Referenced

Legislation:
- Drug supply provisions carrying a maximum penalty of 15 years imprisonment and a fine (applicable to quantities up to 125 grams of MDMA)

Cases:
- R v Tirtabudi [2004] NSWCCA 328
- Howarth v R [2010] NSWCCA 211