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Court of Criminal Appeal 24 November 2014

Finch v R

[2014] NSWCCA 278

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE UNUSUAL CASE ERROR NOT ESTABLISHED MANIFEST EXCESS NOT ESTABLISHED

Citation: Finch v R [2014] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 24 November 2014
Judges: Simpson J, Adams J, R A Hulme J (judgment of R A Hulme J)

Background

Following a jury trial in the District Court, the applicant was convicted of two drug supply offences: possession for the purpose of supply of more than 100 grams of methylamphetamine, and possession for the purpose of supply of a large commercial quantity of lysergide (LSD). Police had executed a search warrant at his home in Pindimar (Port Stephens) in September 2010 and found substantial quantities of both drugs across multiple locations on the premises.

The applicant's case at trial was that a person known as "CJ" had delivered the drugs to him shortly before police arrived, effectively "loading him up" as CJ faced his own criminal charges. The sentencing judge accepted, for the purposes of sentencing, that CJ had maximised the quantities left behind. However, the judge was satisfied beyond reasonable doubt that the applicant was fully aware of all the drugs present and intended to supply them.

Judge Berman SC in the District Court sentenced the applicant to a fixed term of 2 years for the methylamphetamine offence, and 8 years with a non-parole period of 5 years for the LSD offence. The sentences were partly cumulative, producing an overall term of 9 years with a non-parole period of 6 years. The applicant sought leave to appeal against sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred in assessing the seriousness of the offences, including by giving undue weight to the quantities of drugs involved
  • Whether the sentencing judge erred in his treatment of the applicant's subjective circumstances, including his ADHD diagnosis, the impact on his children, and the delay between arrest and sentence
  • Whether the differential between the two individual sentences was excessive or disclosed error, particularly by giving inappropriate prominence to the maximum penalty and standard non-parole period for the LSD offence
  • Whether the overall sentence of 9 years was manifestly excessive

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The sentencing judge had acknowledged that caution is required when placing too much weight on the quantity of LSD involved, noting that the large commercial quantity threshold for LSD is very small in absolute terms. Despite this, the judge was entitled to characterise the LSD offence as "serious indeed," given that the quantity held exceeded 50 times the large commercial quantity threshold.

On the subjective case, the Court accepted that the applicant had a compelling body of mitigating material: a psychiatric diagnosis of ADHD, the hardship of receiving medication in custody, the effect of delay on a person with his condition, and the profound impact his incarceration had on his three children, whom he had raised as sole carer. The sentencing judge had expressly acknowledged these matters. The Court found no error in how they were weighed.

The Court rejected the argument that the differential between the two sentences indicated error. The maximum penalties for the two offences differ markedly: life imprisonment for large commercial supply of LSD, and 15 years for the methylamphetamine count. R A Hulme J observed that the sentence of 2 years for possessing over 100 grams of methylamphetamine for supply was, if anything, a relatively modest one. The gap between the sentences properly reflected the disparity in legislative maximum penalties.

The Court declined to find that the 8-year sentence for the LSD offence, or the aggregate sentence of 9 years, was manifestly excessive. General deterrence remained a significant consideration in drug supply sentencing, and the quantities involved were relevant, even if not determinative. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's approach to the seriousness of LSD supply offences where the quantity held exceeded 50 times the large commercial quantity, even though the judge correctly noted that raw quantity figures for LSD are not directly comparable to those for drugs such as heroin.
  • A significant differential between sentences for two related drug offences does not, of itself, indicate error where the maximum penalties for those offences differ substantially. The Court of Criminal Appeal confirmed that sentences can properly reflect a disparity in legislative maximum penalties.
  • In dismissing the appeal, the Court affirmed that general deterrence remains a weighty factor in sentencing for drug supply offences, and that the volume of drugs involved is a relevant, though not determinative, consideration.
  • Compelling subjective circumstances, including a psychiatric diagnosis, difficulty receiving medication in custody, lengthy pre-sentence delay, and significant hardship to dependent children, do not automatically render an otherwise appropriate sentence manifestly excessive when balanced against the gravity of the offending.
  • Under the Drugs Misuse and Trafficking Act 1985 (NSW), where a sentencing judge accepts that a third party "loaded up" a defendant with drugs, the judge may still find beyond reasonable doubt that the defendant knowingly possessed and intended to supply all of those drugs, sentencing on that factual basis.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166

Cases cited: No cases were cited in the portions of the judgment provided.