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Court of Criminal Appeal 28 November 2014

Youssef v Regina

[2014] NSWCCA 285

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE PRINCIPLES STATED IN KENTWELL V R

Citation: Youssef v Regina [2014] NSWCCA 285
Court: Court of Criminal Appeal, New South Wales
Date: 28 November 2014
Judges: Simpson J, Price J, McCallum J

Background

The appellant was a 25-year-old man who pleaded guilty in the District Court to possessing a prohibited drug for supply under s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). He was found in possession of 29.86 grams of cocaine, almost ten times the trafficable quantity of 3 grams. The charge was based on the statutory deeming provision in s 29 of the Act, which treats possession of not less than the trafficable quantity as deemed supply.

The appellant had no prior criminal history, though he had a significant traffic record. His background included tertiary education and steady employment until a serious workplace accident in 2012 crushed his hand and triggered depression and cocaine use. He told both a pre-sentence report author and a clinical psychologist that he had purchased the cocaine for himself and friends to consume at his upcoming birthday party.

The District Court sentenced him to a total of 2 years and 6 months imprisonment, with a non-parole period of 1 year. A 25 per cent discount had already been applied for his early guilty plea. He sought leave to appeal on the grounds that the sentencing judge erred in several respects, including by rejecting his account and finding that he was substantially involved in commercial supply.

  • Whether the sentencing judge erred in finding that the appellant was substantially involved in supply, having rejected his birthday party explanation
  • Whether the sentencing judge erred in failing to find that the appellant was unlikely to reoffend
  • Whether the sentencing judge gave insufficient weight to the appellant's subjective features, including his age, first offender status, the impact of his workplace injury, and his psychological profile
  • Whether the sentence was unduly harsh and severe in all the circumstances
  • Whether, following identification of error, the Court of Criminal Appeal should substitute a lesser sentence under the principles in Kentwell v R [2014] HCA 37

Decision

The Court upheld Ground 1, finding that the sentencing judge had erred in his assessment of the appellant's involvement in supply. McCallum J (with whom Simpson J agreed) concluded that the judge's rejection of the birthday party account, and his consequential finding of substantial commercial involvement, was not adequately supported. The remaining grounds of appeal were dismissed.

On the question of re-sentencing, the majority (Simpson J and McCallum J) held that the appropriate response was to substitute a significantly shorter sentence. McCallum J considered the strength of the appellant's subjective features: his youth, absence of prior criminal offending, solid personal history before the accident, strong family support, and the role that the industrial accident played in his drug use. Her Honour noted that, but for an apparent physical ineligibility arising from that very accident, she would have referred the appellant for assessment for an Intensive Correction Order.

Applying the principles in Kentwell, McCallum J took into account that by the time of the appeal hearing the appellant had already served approximately 7 months in custody. Her Honour concluded that the appropriate sentence was a short custodial term that would allow release on parole almost immediately, subject to supervision conditions including drug and alcohol treatment and random urinalysis.

Price J dissented on the proposed re-sentence. His Honour considered the offence to be a significant one, noting that nearly 30 grams of cocaine represented almost six times the indictable quantity and that general deterrence remained an important sentencing consideration for drug supply. Price J would have imposed a longer total term of 1 year and 11 months, comprising a 1-year non-parole period and a balance of term of 11 months, after applying the 25 per cent utilitarian discount.

Orders Made

The majority orders (McCallum J, with whom Simpson J agreed) were:

  • Leave to appeal granted
  • Appeal allowed
  • Sentence passed at first instance quashed and substituted with a term of imprisonment comprising a non-parole period of 7 months (commencing 1 May 2014, expiring 30 November 2014) and a balance of term of 5 months (expiring 30 April 2015)
  • Order directing release on parole on 30 November 2014, subject to supervision by the community corrections service, compliance with reasonable directions regarding treatment and counselling for alcohol and prohibited drug use, and random urinalysis for prohibited drugs

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following the identification of specific error in the House v The King sense, the court may substitute a lesser sentence if it concludes that a lesser sentence is warranted in law, consistent with Kentwell v R [2014] HCA 37.
  • A sentencing judge's rejection of an offender's account of the purpose of possession must be adequately supported by the available evidence and reasoning; an unsupported finding of substantial commercial involvement can ground a successful appeal.
  • Strong subjective features, including youth, first offender status, a good personal history disrupted by serious injury, and credible evidence of reduced reoffending risk, are capable of significantly affecting the sentence even in a deemed supply case involving a substantial quantity of a prohibited drug.
  • In re-sentencing following a successful appeal, time already served in custody is a relevant consideration, and a court may impose a short remaining term designed to allow near-immediate parole.
  • Price J's dissent illustrates that the weight to be given to general deterrence in drug supply cases remains a point of genuine tension on the Court, particularly where the quantity involved significantly exceeds the indictable threshold.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 69

Cases:
- Kentwell v R [2014] HCA 37; (2014) 313 ALR 451
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394
- R v Bardo (NSW Court of Criminal Appeal, 14 July 1992, unreported)
- R v Peter Michael Clark (NSW Court of Criminal Appeal, 15 March 1990, unreported)