AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 14 December 2012

Ahmad v R

[2012] NSWCCA 273

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUGS OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Ahmad v R [2012] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judges: McClellan CJ at CL, Rothman J, Adamson J (judgment delivered by Adamson J)

Background

The appellant pleaded guilty in the District Court to three drug supply charges under the Drug Misuse and Trafficking Act 1985. The offences involved repeated supplies of methylamphetamine across multiple transactions and a single supply of cannabis. Five additional matters were taken into account on a Form 1, including possession of drug paraphernalia and exposing a fifteen-year-old daughter to drug premises.

The District Court sentenced the appellant to a total of four years' imprisonment with an effective non-parole period of two years and six months. The sentencing judge described the appellant as an "enthusiastic and resourceful supplier of methylamphetamine" engaged in organised street-level dealing, with payment taking the form of drugs for her own use.

The appellant sought leave to appeal on three grounds: that the sentencing judge improperly used one count to aggravate another, that insufficient weight was given to subjective circumstances, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the repetitive conduct in count 3 (49 methylamphetamine transactions) as an aggravating feature of count 1 (three separate supply transactions), in breach of the principles in Pearce v R.
  • Whether the sentencing judge gave inadequate weight to the appellant's subjective circumstances, including her personal history, remorse, limited financial gain, and rehabilitation prospects.
  • Whether the total sentence of four years' imprisonment was manifestly excessive in all the circumstances.

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing remarks contained no reference to aggravation as between counts 1 and 3. Adamson J held that the sentencing judge's findings about the nature and scale of the dealing simply reflected what was apparent from the charges and the statement of facts, namely that the appellant was trafficking to a substantial degree. No transaction relied upon in count 1 was also relied upon in count 3, and there was no impermissible double-counting.

On the second ground, the court noted that the sentencing judge had expressly addressed nearly every subjective matter raised in the appeal, including the murder of the appellant's former husband, her introduction to drugs through a subsequent relationship, her remorse, and her rehabilitation prospects. The only matter not explicitly referenced was the appellant's age. The court found that the sentencing judge's reference to the appellant's role as the custodial parent of a teenage daughter was sufficient to address her stage of life, and that no error in the exercise of the sentencing discretion had been demonstrated.

On the third ground, the court was not satisfied the sentence was excessive. The appellant had operated an organised street-level supply business using two mobile phones registered in false names, across a sustained period and with a large number of purchasers. The trafficking ceased only upon arrest. The Form 1 matters, including the exposure of her daughter to drug premises, were also properly weighed.

All three grounds failed, and the court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's observation that an offender was engaged in substantial trafficking does not amount to impermissible aggravation between counts, provided no individual transaction is counted more than once across the charges.
  • Under the totality principle, as confirmed in Pearce v R, a sentencing court is required to consider the overall criminality of an offender's conduct when structuring sentences for multiple offences.
  • No error was established in the sentencing judge's treatment of subjective circumstances where those circumstances were substantially addressed in the remarks on sentence, even if not referenced in precise terms.
  • The Court of Criminal Appeal reiterated its role as a court of error: the absence of an identifiable error in the exercise of sentencing discretion is fatal to a ground challenging the weight given to subjective factors.
  • In dismissing the manifestly excessive ground, the court had regard to the organised and sustained nature of the dealing, the use of false identities, the number of transactions, and the Form 1 matters, particularly the exposure of a child to drug premises.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases:
- Pearce v R [1998] HCA 57; 194 CLR 610