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Court of Criminal Appeal 14 October 2013

O'Connor v Regina

[2013] NSWCCA 226

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG EXTENT OF SUPPLY WHETHER ANY LESSER SENTENCE WARRANTED.

Citation: O'Connor v Regina [2013] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 14 October 2013
Judges: Hoeben CJ at CL, Bellew J, Barr AJ

Background

The appellant pleaded guilty in the District Court to supplying methylamphetamine, an offence carrying a maximum of 15 years' imprisonment. No actual supply was witnessed; the Crown relied on the deeming provisions of the Drug Misuse and Trafficking Act 1985. Police found 34.9 grams of methylamphetamine in a hotel room, along with electronic scales, a large number of small resealable plastic bags, smoking pipes, and $485 in cash.

The sentencing judge imposed a non-parole period of two years and a balance of term of one year and six months, partly accumulated on an existing sentence for recklessly inflicting grievous bodily harm. Her Honour found that supply for financial gain was an aggravating circumstance, drawing on the appellant's own evidence that he was making money from drug sales, even if only enough to fund his own drug habit.

The appellant sought leave to appeal on the single ground that the sentencing judge erred in characterising his conduct as supply for profit over and above funding his own drug use.

  • Whether the sentencing judge erred in treating supply for financial gain as an aggravating factor, given the appellant's evidence that any money made was used solely to fund his own drug habit.
  • Whether, if error was established, a lesser sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Decision

Barr AJ (with whom Hoeben CJ at CL and Bellew J agreed) accepted that the sentencing judge had erred. Reading the appellant's evidence as a whole, Barr AJ concluded that the appellant was telling the court he made money from drug sales only to the extent necessary to buy more drugs for himself. The sentencing judge's finding that he was supplying for profit, in the sense of financial gain beyond sustaining his habit, was not supported by that evidence.

However, establishing error at the sentencing stage does not automatically entitle an appellant to a reduced sentence. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must also be satisfied that a lesser sentence is actually warranted in law before it will interfere with the sentence imposed. This requirement was confirmed by the Court in R v Simpson (2001) 53 NSWLR 704.

Barr AJ found that no lesser sentence was warranted. The appellant was a mature man with 40 prior convictions, many involving drugs, alcohol, and violence, and had served multiple terms of imprisonment. Sentencing statistics showed that a head sentence of three years and six months was within the range for this type of offence, even setting aside the partial concurrency benefit. The overall sentence was described as unremarkable and appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of error in the sentencing court does not automatically lead to a reduced sentence; the Court of Criminal Appeal must separately be satisfied that a lesser sentence is warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • In dismissing the appeal, the Court confirmed that the two-step process from R v Simpson applies: first, identify error; second, determine independently whether the resulting sentence should be disturbed.
  • Where an offender's own evidence indicates that money made from drug sales was reinvested solely to sustain a personal drug habit, characterising that conduct as supply for financial gain (as an aggravating feature) may not be supported on the evidence.
  • An extensive criminal history involving drugs, violence, and prior imprisonment does not necessarily justify a harsher sentence than otherwise appropriate, but it removes any entitlement to leniency.
  • Sentencing statistics can form part of the Court of Criminal Appeal's analysis when assessing whether a sentence falls within an acceptable range, even where a specific error has been identified.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW): deeming provisions for supply; trafficable quantity (3g) and commercial quantity (250g) of methylamphetamine
- Criminal Appeal Act 1912 (NSW): s 6(3) (lesser sentence must be warranted before the Court interferes)

Cases:
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Cicciarello v The Queen [2009] NSWCCA 272