Citation: Pak v R [2015] NSWCCA 45
Court: Court of Criminal Appeal
Date: 27 March 2015
Judge(s): R A Hulme J, Davies J, Bellew J
Background
The applicant, a 58-year-old man with no prior criminal history apart from driving offences, was stopped by police after being observed driving erratically. A search of his vehicle revealed prescription medication obtained from multiple doctors, and a subsequent search warrant executed at his home uncovered several prohibited drugs along with various items associated with drug supply.
He pleaded guilty in the District Court to two offences of supplying prohibited drugs. Additional offences were noted on a certificate under s 166. Judge Lerve sentenced him to terms of imprisonment to be served concurrently.
The applicant sought leave to appeal on two grounds: first, that the sentencing judge erred in finding he was substantially involved in trafficking; and second, that the sentences imposed were manifestly excessive.
Legal Issues
- Whether the sentencing judge was entitled to find beyond reasonable doubt that the applicant was involved in trafficking to a substantial degree, given that the drug quantities alone would not have supported that finding
- Whether the sentences imposed were manifestly excessive having regard to the objective seriousness of the offences and the applicant's subjective circumstances
Decision
Ground 1: Finding of Substantial Trafficking
The sentencing judge acknowledged that the drug quantities, which were only slightly above the indictable quantity and about twice the trafficable quantity, would not on their own support a finding of substantial trafficking (at [16]). However, Judge Lerve also took into account other items found at the applicant's home: scales, a blank prescription, numerous empty resealable bags, and containers holding crystals, powder, and a black liquid (at [17]). On the basis of those additional indicia, the sentencing judge was satisfied beyond reasonable doubt that the applicant was involved in an enterprise that envisaged supply on more than one occasion, and that he was substantially involved in trafficking (at [18]).
The Court of Criminal Appeal rejected the applicant's reliance on Youssef v R [2014] NSWCCA 285, distinguishing it on the basis that while Youssef involved no other indicia of supply beyond the drugs themselves, the present case involved three different drugs and numerous items consistent with a supply operation (at [29]-[30]). The court held that the finding of substantial trafficking was open to the sentencing judge and that no error had been demonstrated in his approach (at [31]-[32]).
Ground 2: Manifest Excess
The applicant argued that the offending was of low objective seriousness, involved no actual supply, and was unsophisticated and small in scale. He also pointed to his age, health issues, and limited subjective circumstances. The court noted that, although the sentencing judge made no express finding on objective seriousness, the starting point of two years imprisonment (after a 12.5% discount for the plea) was consistent with sentencing statistics for this type of offence (at [37]-[42]).
Critically, the finding of substantial trafficking meant that a full-time custodial sentence was ordinarily required in the absence of exceptional circumstances (at [41]). No exceptional circumstances were identified. All sentences were made entirely concurrent and the non-parole period represented approximately 57% of the total sentence, reflecting a significant finding of special circumstances (at [38]-[42]). The court found no error of the House v The King type and dismissed this ground of appeal (at [42]).
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A finding that an offender is substantially involved in drug trafficking does not rest solely on the quantity of drugs involved. Where quantity alone is insufficient, other indicia such as scales, blank prescriptions, and multiple resealable bags can together support that finding beyond reasonable doubt (at [16]-[18]).
- Sufficient evidence existed in this case to sustain the sentencing judge's finding of substantial involvement in supply, even though the drug quantities were relatively modest (at [30]-[31]).
- A finding of substantial trafficking in drug supply offences ordinarily compels a full-time custodial sentence unless exceptional circumstances are established (at [41]).
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing decision will not be disturbed simply because the appellate court might have reached a different conclusion on the facts; error in the approach must be demonstrated (at [31]).
- Distinguishing earlier authority requires close attention to whether comparable indicia of supply were present. The absence of such indicia in Youssef v R made that decision of limited assistance to the applicant here (at [29]-[30]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- House v The King (1936) 55 CLR 499
- Kendall v R [2015] NSWCCA 13
- R v Gu [2006] NSWCCA 104
- Youssef v R [2014] NSWCCA 285