Citation: Youssef v Regina [2014] NSWCCA 285
Court: Court of Criminal Appeal
Date: 28 November 2014
Judges: Simpson J, Price J, McCallum J
Background
The appellant pleaded guilty in the District Court to a single charge of possessing a prohibited drug for supply under s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The charge rested on the deeming provision in s 29 of that Act: the quantity found (29.86 grams of cocaine, nearly ten times the trafficable quantity of 3 grams) gave rise to a presumption of supply. The maximum penalty for the offence is 15 years' imprisonment.
Police stopped the appellant after he drove through a red light. A search of his car uncovered three small bags hidden near the handbrake and a larger "rock" of cocaine concealed in a ceiling compartment. The appellant told a pre-sentence report writer and a psychologist that he had purchased the cocaine for friends to consume at his birthday party the following evening. He had not given evidence at the sentence hearing, and the sentencing judge rejected that explanation.
The sentencing judge found the appellant was "substantially involved in supply" and, applying principles derived from earlier Court of Criminal Appeal authority, treated a custodial sentence as essentially mandatory unless exceptional circumstances existed. The appellant was sentenced to a non-parole period of 1 year commencing 1 May 2014, with a balance of term of 18 months. He sought leave to appeal.
Legal Issues
- Whether the sentencing judge erred in finding the appellant was "substantially involved in supply," thereby triggering the requirement to find exceptional circumstances before considering a non-custodial sentence
- Whether the sentencing judge erred in failing to make a positive finding that the appellant was unlikely to reoffend
- Whether the sentencing judge gave insufficient weight to the appellant's subjective circumstances
- Whether the sentence imposed was unduly harsh and severe
- What sentence the Court of Criminal Appeal should impose on resentencing following identification of error
Decision
Ground 1: Finding of substantial involvement in supply
McCallum J, with Simpson J agreeing, held that the sentencing judge erred in finding the appellant was "substantially involved in supply" within the meaning of the principle articulated in R v Clark (1990) and R v Bardo (1992). Those authorities established that where an offender is found to be a trafficker or substantially involved in supply, a custodial sentence is ordinarily required unless exceptional circumstances are shown. However, McCallum J noted that Bardo clarified that "trafficking" in this context carries the connotation of supply on more than one occasion. The appellant was found on a single occasion with cocaine; there were no typical indicia of commercial supply such as scales, resealable bags, or significant cash. In those circumstances, it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the appellant was substantially involved in supply in the relevant sense, and the constraint derived from Clark was therefore misapplied.
McCallum J also noted, without deciding the point, that the proposition in Clark asserting a constraint on judicial sentencing discretion may warrant reconsideration in light of the High Court's remarks in Hili v R; Jones v R [2010] HCA 45, but that question was not before the Court.
Ground 2: Failure to find the appellant unlikely to reoffend
This ground was dismissed. While such a finding would have been open to the sentencing judge on the evidence, the failure to make it did not constitute error.
Ground 3: Insufficient weight to subjective features
This ground was also dismissed. A ground alleging insufficient weight implicitly concedes that some weight was given to the relevant factors, making error difficult to establish. The Court found no error in this respect.
Ground 4: Manifestly excessive sentence
McCallum J held that, absent the error identified in Ground 1, the sentence, while stern, would not have been manifestly excessive. This ground therefore added nothing independently.
Resentencing
Having identified specific error in Ground 1, the Court applied the principle in Kentwell v R [2014] HCA 37 and exercised its sentencing discretion afresh. McCallum J identified this as a case where non-custodial options were well open: the appellant had no prior criminal history, was relatively young, had strong family support, and his drug use arose in the context of a serious industrial accident and consequent depression. The physical consequences of that accident appeared to render him ineligible for community service, which McCallum J noted would otherwise have been a suitable option, and likely also ineligible for an Intensive Correction Order. By the time of the appeal, the appellant had already served approximately seven months of his sentence. McCallum J proposed a sentence reflecting that time served, with immediate parole on conditions including drug and alcohol treatment and urinalysis.
Price J, while agreeing that Ground 1 was made out and the remaining grounds failed, dissented on the resentence. In his view the offence was sufficiently serious to warrant a higher starting point and a longer overall term: a non-parole period of 1 year and a balance of 11 months following the 25 per cent guilty plea discount.
The orders proposed by McCallum J (with Simpson J agreeing) carried by majority.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed at first instance quashed
- Appellant resentenced to a term of imprisonment with a non-parole period of 7 months commencing 1 May 2014 and expiring 30 November 2014, and a balance of term of 5 months expiring 30 April 2015
- Parole order made directing release on 30 November 2014, subject to supervision by the community corrections service, compliance with directions regarding treatment and counselling for alcohol and drug use, and random urinalysis
Key Takeaways
- The principle from R v Clark and R v Bardo, requiring a finding of exceptional circumstances before a non-custodial sentence can be imposed for substantial involvement in drug supply, applies to trafficking in the sense of supply on more than one occasion; a single possession event, without the usual indicia of commercial dealing, does not automatically attract that constraint.
- A finding of "substantial involvement in supply" serious enough to invoke the Clark requirement must be established beyond reasonable doubt; it was not open to make that finding on the facts here, where the appellant was found with cocaine on one occasion, with no scales, no resealable bags, and no significant cash.
- Where specific legal error is identified in a sentencing decision, Kentwell v R [2014] HCA 37 requires the Court of Criminal Appeal to exercise its sentencing discretion afresh, rather than simply affirming a sentence that happens to fall within range.
- A ground alleging insufficient weight to subjective factors is unlikely to succeed where the sentencing court demonstrably gave some weight to those factors; the implicit concession in the framing of such a ground makes error difficult to establish.
- McCallum J flagged, without deciding, that the Clark constraint on the sentencing discretion of trial judges may warrant reconsideration in light of the High Court's observations in Hili v R; Jones v R [2010] HCA 45, leaving the question open for a future case where it arises squarely.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drugs Misuse and Trafficking Act 1985
Cases
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Kentwell v R [2014] HCA 37; (2014) 313 ALR 451
- R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394
- R v Bardo (Supreme Court of New South Wales, Court of Criminal Appeal, 14 July 1992, unreported)
- R v Peter Michael Clark (Supreme Court of New South Wales, Court of Criminal Appeal, 15 March 1990, unreported)